Is it a good reason. The employee was absent from the workplace without good reason during the whole working day: Can he be fired? Missing or truant: how to make the right choice

One of the reasons for dismissing an employee at the request of the employer is absenteeism, but sometimes situations arise when employees do not show up on time or leave their jobs for valid reasons. To avoid litigation, managers need to know a specific list of problems in which termination of an employment contract will be considered illegal. Read also the article ⇒

What is absenteeism according to the Labor Code of the Russian Federation?

A complete list of the grounds on which employers can dismiss their subordinates on their own initiative is indicated in Art. 81 of the Labor Code of the Russian Federation. Among them there is absenteeism - absence from the workplace for more than 4 hours in a row without a valid reason.

To terminate an employment relationship due to absenteeism of a subordinate, the following is necessary:

Action	Description
Fixing truancy	Draw up an act and ask two other witness workers to sign it. Video recordings and memoranda can also be used as proof.
Requesting an explanatory note from the guilty employee	Within two working days, he must provide a written explanation (Article 193 of the Labor Code of the Russian Federation). If this does not happen, an appropriate act is drawn up.
Drawing up a dismissal order	Should contain a description of the reason and a link to Art. 81 of the Labor Code of the Russian Federation, indicating the legality of the employer's actions
Familiarization of the employee with the order	He puts his signature on the document. If he refuses to sign, a corresponding act is drawn up.
Entering information into a personal card and work book	The reason for dismissal is indicated on the basis of paragraphs. and clause 6 of Art. 81 of the Labor Code of the Russian Federation.
Complete calculation	On the last day of work, salary and compensation for the rest of the vacation are paid

List of good reasons for truancy

Sometimes circumstances arise when working citizens cannot predict their absence from work in advance, and this will not be considered absenteeism:

Illness or injury. You will need a sick leave to confirm.
Delay of the vehicle following to the place of work according to the schedule.
Sudden hospitalization of a close relative.
Fires and other emergencies.
Natural disasters.
Utility network malfunctions (water leak, gas leak).
Getting into an accident on the way to work (you need a certificate from the traffic police).

Delay in wages is also a good reason for absenteeism. According to h. 2 tbsp. 142 of the Labor Code of the Russian Federation, if the employer delays it for more than 15 days, employees may not go to work, having previously notified him of this in writing.

Absenteeism is considered respectful and in the event of family circumstances:

birth of a child
death of a relative.

In this case, the employee may request unpaid leave for up to 5 calendar days on the basis of Art. 128 of the Labor Code of the Russian Federation.

Below is an example of an unjustified dismissal for absenteeism:

Savelieva I.V. works in an LLC as a manager, her working day begins at 09 o'clock. 00 minutes On the way to work, she gets into an accident, there are no injuries. It takes 3.5 hours to wait for traffic police officers. After drawing up a road accident scheme, the culprit, together with I.V. sent to the traffic police department, where all documents are drawn up.

Subsequently Savelieva AND.The. provides a certificate of the incident to the manager so that absence from work is not recognized as absenteeism.

What reasons are considered disrespectful?

A specific list of disrespectful factors of the Labor Code of the Russian Federation is not provided, however, in judicial practice, there are several situations when dismissals for absenteeism were recognized as legitimate:

Failure to provide sick leave for the entire period of illness.
Leaving for any vacation, if the application is not signed by the head.
Caring for an inpatient relative, if not necessary.
The employee left the workplace without permission and without good reason, without coordinating this with the boss.
The circumstances of the absenteeism are unknown to the management, but the employee himself refuses to give explanations.
If the person overslept, did not want to go to work, or simply forgot.

In the latter case, it can be problematic to prove absenteeism: as a rule, employees still come up with valid reasons and indicate them in explanatory notes in order to avoid dismissal.

In Italy, since the beginning of 2017, they have been actively fighting truancy of civil servants. According to the idea, the perpetrators are punished with house arrest or dismissal. “If we see that the manager does not punish the culprit, our employees intervene. If the offender is not dismissed by his boss, sanctions are imposed on him, ”said Marianna Madia, Minister of Public Administration.

What disciplinary actions are there?

Conclusion

Dismissal for absenteeism in some cases is considered illegal if the employee did not show up for work for a good reason. This must be taken into account by employers when deciding on the application of a disciplinary sanction in order to avoid mistakes and not unlawfully dismiss an employee who is already in a difficult situation.

Are there good reasons for absence from work? Some employers joke that only death is considered a valid excuse for absenteeism. But absenteeism is often due to illness, a wedding, or a university exam. Let's figure out what truancy is and what reasons can be considered valid.

What is considered truancy

Absenteeism is considered the absence of an employee from work for more than 4 hours in a row, but provided that the lunch time, which is due to a person by law, has been deducted. A period of absence less than the specified period must be recognized.

Absenteeism falls into two categories:

Without good reason. Such absenteeism can be a reason if the employer does not impose another punishment on the employee.
For a good reason, when a person was forced to be absent.

In practice, situations often arise when the employer does not recognize the employee's arguments as valid and fires him. Then the employee can go to court and appeal the decision.

By analyzing the circumstances of modern life, it is possible to identify some valid reasons for the absence of an employee.

Personal reasons

1. Illness or injury.

Absenteeism is due to the employee's health, when a person goes to the hospital, but does not get sick leave. Many people give up sick leave to keep their wages. In this case, the employee must provide a certificate from the doctor, which will indicate the date of the appointment.

2. Medical examination.

If a person works in a grocery store, childcare, catering, military, fire or rescue service, then a medical examination is a mandatory procedure, and the absence of an employee cannot be considered absenteeism. But if an employee appointed a medical examination for himself and did not bring a certificate from a doctor, then this can no longer be considered a good reason.

If the employee refused to write out a sick leave or was undergoing a medical examination, then he must provide a certificate from a doctor.

3. Illness of a child or other family member.

This fact must be confirmed by a certificate from a doctor or take a sick leave to care for a child.

4. Unexpected breakdown in the utility sector.

These reasons include a gas leak, a break in heating or water pipes, a short circuit in electricity, or a fire.

5. Participation in government processes.

The reason for absenteeism is considered valid if the employee is in court on a subpoena, for example, as a plaintiff, witness, jury or election commission representative. According to Art. 46 of the Constitution of the Russian Federation, such a reason is considered valid, because a person has the right to personal participation in court.

6. Delayed wages.

Delaying salary payments for more than 15 days can also be a valid reason. The employee has the right not to go to work, but must notify the employer in writing. According to Part 2 of Art. 142 of the Labor Code of the Russian Federation, the absence can continue until at least part of the salary is paid.

Reasons for truancy provoked by an external factor

The circumstances for absenteeism may or may not be related to personal reasons. Everything that can be attributed to force majeure situations justifies the absence of a person from work for 4 hours or more.

Force majeure situations:

Breakdown of an elevator in the house - an employee got stuck in the elevator and could not come to work.
Traffic accident.
Malfunction of transport, if it is not possible to transfer to another bus, trolleybus, etc.
Natural obstacles (flooding, ice, strong gusts of wind).
Epidemiological situation in the village and compulsory vaccination.
Flight delay, which creates obstacles for the timely return home from vacation, business trip or other trip.
Lack of tickets at the box office of any road, water or air service.

If the employee has confirmation that the absenteeism was due to serious circumstances, then you cannot fire him.

Reasons for absenteeism that are known in advance

Sometimes other circumstances that arose the day before or were known in advance may be the reason for absenteeism. Such reasons include a wedding, the birth of a child, or the death of a close relative.

Also, the employee has the right to receive additional days off, which are not paid by the employer and cannot be considered absenteeism. But the employee is obliged to notify the manager in writing about these circumstances, if this is not possible, then you can just call. According to Art. 128 of the Labor Code of the Russian Federation, the period of absence from the workplace cannot exceed 5 days.

The employee has the right to receive additional days off, which are not paid by the employer and cannot be considered absenteeism.

Absenteeism does not always happen at the will of the employee. Sometimes a person is forced to stay late or not come to work at all due to unforeseen circumstances. But if there is a justification for absenteeism and it is respectful, then you have no right to exceed your authority and deprive an employee of work. Before publishing, give the subordinate the opportunity to justify themselves.

Occasionally there are events that prevent an employee from showing up for work. Very often it does not depend on him, but on the weather or transport.

In legislation no concept of absenteeism, but there is an article describing the consideration of labor disputes by the courts when admitted for valid or disrespectful reasons ().

Absenteeism is considered absence from work without a valid reason for 3 hours or more. In this case, hours are not counted in a row. If an employee has worked only 5 out of 8 working hours, this is considered absenteeism.

Reasons for absence from the workplace

But before considering a pass as absenteeism, you need to pay attention to the reason for not showing up for work. Reasons can be both good and bad.... Only the employer can determine the category. To do this, he needs an explanation of the employee and the accompanying documents.

Subjective

Subjective reasons for non-appearance are associated only with an employee... For example, illness. In this case, the employee must provide one from the following evidence:

sick leave;
an appointment with a doctor in a hospital card.

Sample doctor's note

However, in many enterprises sick leave is not paid.

Every year, all employees must pass medical examination... This will happen during business hours, so such absences are considered a good reason.

Sample application for release from work in connection with a medical examination

Also, a person cannot be fired if participated in the court session as:

a witness;
the victim;
the defendant;
juror.

Sample subpoena

Also, a good reason is that the person participated in an investigative experiment, checking the premises as an attesting witness or in other actions related to the law. In this case, law enforcement agencies are required to issue the employee a document indicating the reason for the absence from work.

There are times when an employee received a summons to the military registration and enlistment office... He must appear there at the exact time, otherwise he will face problems with the law. If he misses work, such a reason is also considered valid.

Sample summons to the military registration and enlistment office

Objective

Objective reasons are the reasons that make it impossible to get to work, due to an emergency... Among these:

accident on the road;
technological disaster;
military actions;
severe blizzard;
landslide, fire or flood;
earthquake or hurricane;
a road littered with snow, if it was not cleared in time;
broken transport (if it is impossible to get to work on foot);
road repair;
an unexpected breakdown associated with the field of utilities (a pipe burst or a gas leak began);
delayed wages (if it is delayed for more than 15 working days, the employee may not work until he receives his money, but must notify his superiors in writing about this in advance);
breakdown of the elevator (a person is stuck inside);
epidemic in the area and mandatory vaccination;
lack of tickets for transport;
delay or cancellation of transport.

If the above cases are not considered a good reason for the boss and the employee faces dismissal, a court hearing will be held. The court will most likely decide that the dismissal was illegal.

In addition, the Labor Code of the Russian Federation specifies several more valid reasons for absenteeism. Among them labor activity on:

holiday;
weekend;
1 day more than necessary.

In such cases, you work overtime and has the right to demand monetary compensation or time off from the authorities... Remember the day when you are going to take a day off, you need to warn in advance to avoid problems in the future.

The list of all valid reasons is in articles,,, Labor Code of the Russian Federation.

According to the application

This reason is also valid. You write a statement to the director indicating the reason for the pass... Take it to an official. The director gets to know him and decides whether the given reason is considered valid or not. The most important thing in such cases is to submit an application to the superiors before the job is missed. Among such reasons:

parent meeting at school;
event in honor of the first or last call;
the need to submit documents to the child's place of study;
feeling unwell;
wedding;
death of a loved one;
birth of a child.

According to article 128 of the Labor Code of the Russian Federation, the last three reasons allow you to take a day off for 5 working days. According to the same article, you can take a small day off if it concerns the first 4 reasons. But missed days are not paid.

Regulatory regulation

Regulatory regulations are documents with the structure, functions and legal status of employees. They are developed on the basis of legislation, therefore they must be adhered to. It contains all the information about managers and employees. And this is where the certificates and statements you provide will be located.

List:

documents related to labor rationing;
documents on the structure, departments and number of employees in the company;
documents related to working conditions, organization of workplaces, etc .;

What to do if, despite good reasons, there was a dismissal

Contact to the labor inspectorate with a complaint that the boss is violating labor laws.

You will have no control over the review process. Therefore, the terms of the proceedings can be very long.

Some very large companies have labor dispute commission... This is a group of people who are independent from their superiors who deal with similar issues.

The best solution is to go to court... But the application for consideration must be submitted no later than 1 month from the date of dismissal. Evidence will be collected, witnesses interviewed and a ruling issued. If the court determines the unlawfulness of the dismissal, you will be immediately reinstated at the place of work, and you will also be paid moral compensation, which depends on your salary. The court session is a paid procedure, but the price will be reasonable.

We bring to your attention a video that tells what an employer should do if an employee does not come to work.

It is best to agree with the authorities peacefully without attracting outsiders. Litigation can lead to poor relations with management.

If you are about to skip work, you better warn your superiors in advance by writing a statement. If he refuses to let you go, promise him to work another day.

According to labor law, the termination of an employment contract with an employee may follow due to the actual absence of the worker from the workplace without valid reasons, equal in duration to both the entire working day (shift) and more than four hours in a row during this day (shift). In other words, an employee’s absence from work for four hours is tantamount to absenteeism.

Consider how such absenteeism is punished, and what is the procedure for dismissal.

The duration of the absence of an employee and its impact on the choice of disciplinary sanction

It is important for the employer to record the duration of the worker's absence from the workplace.

Since the legislation provides for the possibility of dismissal due to absenteeism only in the absence of an employee equal to more than 4 hours in a row, dismissal for absence within 3.5 hours is no longer allowed (subparagraph "a" of the 6th paragraph of the 1st part of the 81st article Labor Code of the Russian Federation).

In this case, disciplinary sanctions may be applied to the employee for the misdemeanor. This is a remark, reprimand and termination of employment, i.e. dismissal.

In addition, the summation of the total absence of the worker, for example, for several days, for individual hours of delay (morning, afternoon), or those associated with leaving ahead of time, is not allowed.

Dismissal due to truancy is attributed to the rights of the employer, and not to his duties. Therefore, if there is a fact of absenteeism, he can apply one of the types of disciplinary sanctions against the employee, or apply nothing at all.

Dismissal procedure

Since absenteeism is classified as a type of disciplinary offense, that is, non-fulfillment of the labor duties entrusted to him or the performance of such in an inappropriate manner, termination of an employment contract can become a disciplinary measure.
Dismissal of a worker, taking into account the provisions of Article 81 of the Labor Code of the Russian Federation, can be carried out only if the rules specified in Article 193 of the Labor Code of the Russian Federation are observed.

First, you should prepare and certify it with the signatures of at least two witnesses. The drawing up of the act should follow on the same day, but the familiarization of the absent employee with this document should take place on the day he appeared at work.

In the absence of the latter, the daily drawing up of such an act is allowed. In the case of submission of a document confirming the validity of the reasons for the absence of a document, some days, from those that were missed, may be outside the documentary confirmation.

In the timesheet of the working hours, the corresponding notes are made according to the time of the employee's absence.

It can be an alphabetic code "NN" or a numeric "30", which means a failure to appear due to unexplained reasons.

In addition to the act, you can prepare a memo addressed to the head of the enterprise. The immediate supervisor of the absent employee can take care of its registration.

The note should indicate the absence of the worker at the workplace and the measures taken to find him (call to a mobile, home phone, etc.). As soon as an unscrupulous employee appears at work, you should immediately demand from him an explanation of the absence, drawn up in writing.

The employee is given two working days to prepare such an explanation (Article 193 of the Labor Code of the Russian Federation). If the employee has not submitted an explanatory note, an act is drawn up indicating the employee's refusal to explain his behavior. The act is certified by the signatures of at least two witnesses.

After the employer receives an explanation from the employee, the validity of the reasons for the absence of the employee is assessed. This is a rather difficult task, since the labor legislation does not provide an approximate list of the reasons under consideration.

If the employer considers the stated reasons as disrespectful, an order for his subsequent dismissal () is drawn up for the employee and presented to him for review and signature. If the employee has expressed a refusal to sign the document, the corresponding act is again drawn up, after which an entry is made in the work book confirming the dismissal under the article.

The dismissed employee is given a full payroll. If the employee disagrees with the employer's actions, he can go to court.

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

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

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

Step 1. We fix the fact of absence

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

Sample of an employee's absence from the workplace

Sample form of the employee's absence from the workplace

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

Step 2. Mark the failure to appear in the timesheet

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

Sample of fixing absenteeism in the time sheet

Before receiving a written explanation

After receiving a written explanation

Step 3. We inform the management of the company

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

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

Sample memo on absenteeism of an employee

Step 4. Asking questions

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

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

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

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

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

Sample act of refusal to provide written explanations

Sample letter asking for reasons for absenteeism

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

Step 5. Assess the validity of the reason for absence

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

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

Sample order of dismissal for absenteeism

Step 8. Introduce the employee to the order

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

Step 9. We fill out the work book

Sample entry in the work book when dismissing for absenteeism

Step 10. We issue a work book

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

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

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

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