Today there are several ways to dismiss an officially employed employee. One of the most unpleasant is dismissal under article. Most often this happens due to ordinary absenteeism.

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Legal basis

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

Currently used edition Federal Law dated June 30, 2006. But not every absenteeism can result in an officially employed employee being fired.

This requires a match large quantity various factors:

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

A valid reason means any situation that prevents an employee from arriving at his or her appointment. workplace during. For example:

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

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

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

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

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

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

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

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

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

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

Consequences

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

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

Almost always, the employer closely studies work book your potential employee.

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

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

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

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

How to avoid being fired for absenteeism

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

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

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

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

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

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

• write an application for at will;
• urgently “get sick” and take a sick leave or go donate blood.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

If for some reason the employee does not want to attend former place work, you can get this document by mail.

When dismissal is inevitable, it is best to use one of the above schemes. This will prevent a record of dismissal for absenteeism from appearing in the employment record.

Features of employment after dismissal

At a new place of work, they are always interested in the work record and carefully review the work record. This is why problems very often arise during subsequent employment.

In such situations, it is necessary to explain to the new employer the reason for such an entry and find a rational and convenient explanation.

The easiest way is to say that they couldn’t find it mutual language with his former boss, and he thus decided to take revenge.

Dismissal for absenteeism is usually an unusual task for personnel worker, in connection with which the presented procedure for dismissal for absenteeism in the form of step-by-step instructions, relevant for 2018, will be useful for both employees and employers.

The labor legislation of the Russian Federation provides grounds on which an employer has the legal right to terminate a current employment contract with an employee for absenteeism. However, in practice, having received “dismissal under an article” in their work record, even the most inveterate truants may disagree with the dismissal and begin to challenge the dismissal, even if it was objectively fair and legal.

To eliminate the risks of such disputes, which take a lot of effort and time, you need to clearly understand the whole process, how to properly fire an employee for absenteeism. Ideally, every HR specialist should have a step-by-step written detailed instructions dismissal of an employee for absenteeism, and there must also be a sample of each notice, act and order that is necessary to ensure that the registration of absenteeism is correct.

First you need to decide what truancy is. Art. 81 of the Labor Code of the Russian Federation (clause 6, part 1) explains that absenteeism is considered to be the absence of a person from his workplace for more than four hours in a row or throughout his entire work shift, regardless of its duration. It is important whether he had good reasons for this.

The employer has the right to terminate the contract after a single such violation. It is also possible to be fired for long absences.

In order for the scheme of dismissal for absenteeism to be clear even to a non-professional personnel officer, step-by-step instructions are needed that are relevant in the current 2018.

Typically, signatures are placed by the person who discovered the fact of absenteeism, as well as by an employee of the human resources department or another official responsible for the procedure for registering absenteeism. The collected documents are registered in the manner established by the employer. As a rule, in the relevant accounting or registration journals.

Step 2. We clarify whether there are any restrictions on the dismissal of this employee at the initiative of the employer

It should be remembered that Article 261 of the Labor Code of the Russian Federation directly prohibits, on any basis, at the initiative of the employer, except in cases when the organization is being liquidated, or in connection with the closure individual entrepreneur. In other words, even if a pregnant woman skips work every day, she cannot be fired for absenteeism.

Step 3. We check the deadlines established by law for dismissal for absenteeism

Obviously, the date of dismissal for absenteeism cannot be several years later than the absenteeism itself. Article 193 of the Labor Code of the Russian Federation defines the deadlines for dismissal for absenteeism. This period is equal to one month from the date of discovery of the offense. It can be extended for the duration of the employee’s sick leave or vacation, as well as for the time that will be necessary to request and take into account the opinion of the representative body of employees, if there is one in the organization.

Sometimes truancy is not immediately known. Then, when the fact of absenteeism is discovered, you need to make sure that the deadline for applying the penalty has not been missed. It is six months from the date of absence. IN given period time for conducting criminal proceedings is not included.

Step 4. We ask the employee for a written explanation of his absence from the workplace

To do this, an official notification of the need to provide an explanation for absence from work must be issued in writing. The document must be prepared in two copies so that each party receives one. We register the notification in accordance with the procedure accepted in this organization. Sometimes this is a log of notifications, acts and memos, sometimes, if the company's staff is small, it can be a general log of personnel document flow.

The employer hands one copy of the notice to the employee in front of witnesses. On the remaining copy (the employer's copy), the employee signs that he has read the notice and has received one copy in his hands.

According to the law, the employee is given two working days to provide a written explanation. A written explanation of the truant employee provided within this period must be registered in the appropriate journal and accepted for consideration.

If the employee refuses to provide written explanations, he should still wait the required two days in case he changes his mind and still exercises his right to provide explanations. Otherwise, if it comes to a labor dispute, the court may consider that such a right was not granted to him and reinstate him at work. Such arbitrage practice exists.

If the established period has expired and the employee has not provided an explanation, then it is necessary to draw up an official document about this, which also must be carefully registered.

The absence of a written explanation from the employee is not an obstacle to applying the required disciplinary sanction if the entire procedure for dismissal for absenteeism(s) has been followed.

Step 5. Consider all the circumstances of absenteeism

Step 6. Check the validity of the reason for absenteeism

The procedure for dismissing an employee for absenteeism(s) stipulates that dismissal under this article is possible only if the employee does not present valid reasons for not appearing at work.

At the same time, dismissal for absenteeism in this case not an obligation, but a right of the employer. If, after analyzing all the circumstances of the misconduct, the employer decides not to dismiss the employee, but to limit himself to imposing a reprimand or reprimand on him, this is his legal right. It may also be decided not to take any disciplinary action at all. In this case, the step-by-step procedure for dismissing an employee for absenteeism(s) ends here.

However, it makes sense to keep all collected notifications, explanations and acts in personal file employee in case the situation repeats.

If, after reviewing all the documents and taking into account all the explanations, management decides to dismiss you for absenteeism, then the following steps of the instructions are relevant.

Step 7. Drawing up a dismissal order

The issued order is signed by an official authorized to perform these actions, registered in the order journal or in another manner established in the given organization.

You should make sure that the employee is not on vacation or temporarily disabled at the time of dismissal. During these periods, the dismissal of employees at the initiative of the employer is illegal (Article 81 of the Labor Code of the Russian Federation). In this case, the dismissal of the employee will need to be postponed until the end of this period.

Step 8. We familiarize the employee with the dismissal order against signature

If the dismissed employee has read the order and certified it with his signature, the order must be registered. If it is not possible to bring the order to the attention of the employee, or he refuses to put his signature on it, a corresponding entry about this is made on the order itself (Part 2 of Article 84.1 of the Labor Code of the Russian Federation). If the employee refuses to familiarize himself with the issued dismissal order, it is necessary to draw up and register an act (Part 6 of Article 193 of the Labor Code of the Russian Federation).

Step 9. We pay the employee

Step 10. We make an entry about the dismissal in the work book, duplicate the entry in the T-2 personal card

The employee certifies the recording data with his signature on the personal card. Also, upon dismissal, it is necessary to check that every entry made by this employer in the employment record (about hiring, about transfer to another job, about dismissal) is duplicated in the personal card. And opposite each one was the signature of the dismissed employee.

Step 11. Making a copy of the work book

A copy should be kept in the organization’s archive in case reliable information about the length of service of the dismissed person is needed, for example, for the Social Insurance Fund of the Russian Federation.

Step 12. Issuing the employee his personal work book

In the classic situation, the work book is issued on the last day of work. Sometimes this is not possible due to the absence of the employee or refusal to receive it. In this case, first of all, the corresponding act is drawn up, and the employee is sent an official notice of dismissal and the need to personally come for the work book or give written consent to have the employer’s representative send it by mail.

The notification is registered. If an employee who does not agree to receive his work book immediately after dismissal, after some time turns to the employer for it, then it should be given to him within three days (working days) from the date of the employee’s written request.

Step 13. Confirm that the work book has been issued

In any organization where at least one employee works, a book of traffic movements must be kept. books and inserts. It records such information as the date of each employee’s hiring and, accordingly, the receipt of his work book for safekeeping.

When issuing a book, an employee must make an entry about this in the Accounting Book. The date of dismissal and the date of issue of the work book are also indicated. The former employee must personally sign to confirm receipt of the document.

Step 14. Issuing additional documents to the employee

We issue certificates to the dismissed person, which contain information about the amount of his earnings. The employer’s responsibility is to issue each dismissed employee with certificates specified by law (clause 3, part 2, article 4.1 of the law of December 29, 2006 N 255-FZ). Often, when employees resign, they expect to automatically receive a 2-NDFL certificate. However, the employer’s obligation to issue this certificate occurs only if the employee submits a written application for its issuance.

An employer has the right to fire employees for absenteeism if they do not provide evidence good reason for such an offense. The absence of an employee must be documented, as well as a number of other actions that management must perform before dismissing a truant worker.

What is truancy?

If an employee is absent from work for the entire shift or a significant part of it, and there is no good reason for this, then this situation is called absenteeism. By such actions the employee grossly violates labor discipline, because manufacturing process is broken or becomes impossible.

Absenteeism must be documented. This may be grounds for disciplinary action or dismissal.

Dismissal is a last resort. The employer may limit itself to disciplinary sanctions.

There is also only one disciplinary sanction for one absence. When determining it, the severity of the offense must be taken into account. If the penalty is disproportionate to the misconduct, the employer may incur administrative liability.

A workplace where an employee is absent is a somewhat vague concept. You can mean the entire territory of the company, a specific office or a place at the machine. You should follow the job description, where the place of work should be specified. Otherwise, a controversial situation may arise.

Calculation of time away from work

According to labor law, it is permissible to dismiss an employee if absenteeism is recorded for more than 4 hours. The time of absence must be calculated taking into account several factors:

• Time allotted for lunch does not count towards absenteeism. The duration of such a break must be fixed in the employment agreement. If the employee was absent for 4 hours, but part of this period occurred during lunch, then this is not considered absenteeism.
• According to labor legislation, it is possible to record and summarize all periods when the employee was not at the workplace during one shift (working day). If in total he was absent for more than 4 hours, then this is absenteeism.

Valid reasons for absenteeism

There are several factors when the reason for absenteeism is considered valid. This applies to situations where the employee:

• sought medical help;
• was on sick leave;
• cared for a disabled relative;
• was absent due to the death of a close relative;
• we undergo a medical examination, which is mandatory for his specialty;
• participated in investigative actions, was in court;
• I consulted a lawyer regarding violation of labor rights.

In order for the reason for absenteeism to be considered valid, it must be confirmed by the appropriate document. This is a sick leave certificate, a certificate from a medical institution, court or investigative authorities. Evidence may also include testimony from witnesses, but it must be written.

A valid reason may also be force majeure situations when the employee was not able to be at the workplace on time. This is observed in the event of an accident, natural disaster, fire, short circuit and other emergencies.

Procedure for dismissal for absenteeism

To begin this procedure, the employer must obtain documentary evidence of absenteeism. Everything must be arranged in a certain order.

It is necessary to proceed according to the following algorithm:

1. Record the fact of absenteeism. This must be reflected in the timesheet, which takes into account working hours. The code "NN" is used.
2. Draw up an employee absence report. It must be signed by 3 witnesses who work here. If the employee is absent for several days, a report is drawn up for each of them, indicating the current date.
3. If an employee does not show up for work, then it is necessary to contact him to establish the reasons for his absence. If it is impossible to contact the employee, you should send him by registered mail requirement to present an explanatory document. They give 2 days for this from the date of receipt of the registered letter. If the letter is returned back to the employer, then the 2-day period is counted from the moment it was sent back by mail. In this case, a note is made indicating the impossibility of delivery.
4. If an employee returns to work, he is presented with a written report and requires a written explanation indicating a good reason. Two days are given for this in accordance with labor legislation. In case of refusal, a corresponding act is drawn up, which the employee signs in front of three witnesses. If he refuses to sign, a corresponding note is made in the document.
5. In the absence of a compelling reason, the code “NN” in the report card is replaced with “PR”.
6. Draw up a report on the fact of the violation and submit it to senior management. If the employer deals with absenteeism personally, then he can receive reports from other employees, the head of the personnel department. It is mandatory to put the resolution on the memorandum.
7. The memorandum must be registered in the appropriate journal.
8. If the reason for absenteeism is found to be unexcused, this is a legal basis for the dismissal of the violator.
9. When drawing up an order for dismissal, the employee must be familiarized with it and signed. After this, the document should be registered by making an appropriate entry in the personnel log. If an employee refuses to sign an order, then a report on this fact must be drawn up. This document is signed by witnesses.
10. The fact of dismissal for absenteeism is entered into the employee’s personal card, where he must sign.
11. The work book contains a serial number and date, information about dismissal is indicated with reference to the law (Article of the Labor Code) and details of the order.
12. The dismissed employee is given a work book and the necessary entries are made in the accounting documentation. On the same day, the money due to the employee is given. If he did not show up for the documents, they can be sent by registered mail.

It is worth considering separately the situation when an employee goes missing. The employer must take all possible measures to find him: interview relatives and friends, file a police report, call hospitals and morgues. If there are no results, you can terminate the employment contract.

Features of dismissal for long absences

Labor legislation has the concept of absenteeism, but there are no established deadlines by which its duration would be determined. The Labor Code only states that absence from work for more than 4 hours is considered absenteeism, but the maximum time frame is not established.

Absenteeism is considered long-term if the employee cannot be found, which means that it is impossible to demand an explanation from him personally regarding his absence from the workplace. In this case, such a request must be sent by mail. To do this, you can use registered mail or with a valuable letter with a description of the attached documentation. There must be a notification of delivery.

Another way to send a request is by telegram. You need to receive a certified copy and notification of delivery.

If more than two days have passed since the employee received the letter or telegram, but no explanation has been given, then it is necessary to draw up a corresponding act, which must be signed by the manager, employee personnel service and other employees acting as witnesses.

In the event of a long absence, an employee can be dismissed with a note that it is impossible to bring the order to his attention. In this case, refer to Article 84.1 of the Labor Code. The day of dismissal should be considered the last working day before absenteeism.

Documentation

It is important to compile the necessary documents correctly and in the correct sequence.

Certificate of absence from work

It can be issued by any employee who discovers the absence of an employee. In practice, this is usually done by the violator’s immediate superior.

There is no established form of the form, but the act must meet the following requirements:

• 2 copies, one of which is subsequently transferred to the employee;
• availability of serial number and current date of compilation;
• availability of information about the organization;
• Name and position of the truant;
• Full name and position of employees (at least three) signing the document as witnesses.

When the employee reads the act, he must sign it. If a signature is refused, this fact is indicated in the act and certified by the signatures of witnesses.

You can download a sample document drawing up.

Notice to report to work

In case of absenteeism, the employer sends such notice to the employee so that he can personally explain his absence. It is better to send it by valuable letter. The document should indicate the details of the organization, the number and date of the Notification, the full name of the employee, and his position.

The main part of the Notification states that you must appear to give written explanations within two days, otherwise the employment contract will be terminated in accordance with labor legislation. The document is signed by the manager.

Explanatory note from the employee

The employee must provide this document in writing. You need to write it by hand on an A4 sheet.

The explanatory note is drawn up in any form, but indicating:

• addressee (manager) and details of the employee (full name, position);
• title of the document;
• dates of absence from work and reasons for absence;
• dates of compilation;
• personal signature.

The explanatory note should be one page. If the reason for absenteeism is documented, then the evidentiary papers are added to the note, and this fact is indicated in its text.

Employee refusal act

If an employee refuses to write an explanatory note, then such a document is drawn up. There is no strictly established form for it, but as a standard it states:

• name of the document with the basis for drawing up (act of refusal to write an explanatory note);
• name of company;
• Full name with the employee's position;
• information about the witnesses present (minimum two);
• date of document preparation;
• reference to the Labor Code (Article 193.1);
• a detailed description of the incident on the basis of which the explanatory note was needed;
• the reason for the employee’s refusal to explain (if he named it);
• signatures of the author of the document and witnesses.

The act is drawn up in two copies: for the employee and for the HR department.

Order of dismissal

The decision to dismiss is confirmed by order. It is compiled according to the T-8 form.

You can download a sample order form.

Deadlines and dates

When dismissal for absenteeism, it is necessary to comply with the established deadlines, which are counted from the moment of the offense. If the fact of violation is established later than these deadlines, dismissal due to absenteeism is impossible.

Dismissal is possible if the misconduct was discovered no more than 30 days ago or no more than six months have passed since the date of its commission.

An employee can appeal the employer's decision to dismiss in court after receiving a photocopy of the dismissal order or work record book. He has 30 days to file a lawsuit. After this period, the court will not consider the case.

The employee is given 2 working days to draw up and submit an explanatory note. Such a document can be sent by registered mail, then the date of filing the explanatory note will be considered the date it was sent by mail, even if the employer receives it later.

The dismissal order is issued within 48 hours. The employee is allowed to familiarize himself with it under his signature within 3 days. The work book and the required cash payments are issued on the day of dismissal.

Registration in the work book

When dismissing an employee for absenteeism, the final stage is to make a corresponding entry in the work book. It must include the record number, date and reason for dismissal. This is Article 81 of the Labor Code. When absenteeism, the first part of the article, paragraph 6, subparagraph a is indicated. The basis for making the entry is also indicated - the order number and the date of its preparation.

In accordance with the law (Labor Code, Article 84), the date of dismissal is the employee’s last working day. If the absence was not due to a valid reason, which is not confirmed, then the employee is fired on the date preceding the day of absence from the workplace.

If the employee provided an explanatory note, but the reason for absenteeism turned out to be unexcused, then dismissal and the drawing up of the corresponding order is carried out on the day the written explanation is provided to the employer, if the deadlines for its submission were not violated.

Separately, it is necessary to consider the situation when the reason for absence from the workplace is the death of an employee or missing person. To terminate an employment contract in this case, a court decision recognizing this status of a citizen is required. The initiator of the process can be both the relatives of this employee and the employer himself. In this case, an entry is made in the work book that the termination of the employment contract is due to the death (disappearance) of the employee. When making an entry, you must refer to labor legislation (Labor Code, Article 83.1, paragraph 6).

Payments and compensation to employees

Even when fired for absenteeism, the employer must make certain payments to the dismissed employee. The employee must receive wages for the time worked by him in accordance with the tariff approved in the employment contract. The employee is also entitled to compensation for unused vacation.

Separately, situations should be considered when the employee’s absenteeism resulted in certain material losses. Their replenishment can be agreed upon with the employee individually or through legal proceedings.

Who cannot be fired for absenteeism according to the law?

Dismissal for absenteeism is illegal if it is committed for a good reason.

Such an extreme measure cannot be applied to certain categories of workers:

• pregnant women;
• employees on vacation or sick leave;
• minors, if state inspection Labor and the Commission on Minors' Affairs did not give such consent.

Controversial situations and their resolution

A controversial situation may arise when there is no clear concept of each employee’s workplace. If the organization has a very large territory, then proving the fact of absenteeism or absence of an employee from work will be problematic.

If a specific workplace is not specified in an employment contract, job description or local regulations, then in accordance with labor legislation (Labor Code, Article 209) the entire territory of this organization is considered to be it.

A controversial point is the inclusion of a lunch break in absenteeism. Dismissal in such a situation is considered unlawful, although there are cases where the court decided in favor of the employer. To appeal such a decision, you should contact the cassation authority.

Another controversial point is absence from work for 4 hours if this time was divided by a lunch break. According to labor law, a lunch break is not working time, so absence from the workplace before and after it is counted together.

Often controversial situations arise due to the determination of whether the reason for absenteeism is valid. There is no clear definition of valid reasons in labor legislation, so the employer makes a decision in each case independently. It can be challenged in court, where these circumstances will be assessed in a new way.

Another controversial point– unauthorized use of vacation and other days of rest. In such cases, the employer has the right to dismiss an employee for absenteeism, since vacations and other days of rest must be agreed with him. The exception is situations where the employee submitted a corresponding application, but the employer unlawfully did not accept it.

Employer's liability for illegal actions

Dismissal of an employee due to absenteeism may lead to a labor dispute. In accordance with the Labor Code (Article 394), the following options are possible:

• If the dismissal is considered illegal, the employee must be reinstated to his previous job.
• Instead of being reinstated, an employee can submit an application to have the wording of the reason for dismissal changed in his work book. In this case, it is indicated that he resigned of his own free will.
• If absenteeism is forced, then the employee is paid average earnings during absence.
• If the dismissal is declared illegal and the employment contract expires at the time the case was considered, the wording of the reason for dismissal in the work book is changed to dismissal at will. In this case, the date of dismissal is also changed - it is marked with the date when the court decision was made. The exception is cases where, during the proceedings, the employee entered into an employment contract with another employer. In this case, the date of dismissal is changed to the date preceding the day of hiring for a new job.
• If the reason for dismissal is reflected incorrectly in the work record book, and this prevents the employee from getting a new job, then the employer found guilty pays him the average salary for the period of forced absence.
• If there is no dismissal legal basis or the procedure established by labor legislation was violated, the employee may demand monetary compensation moral damage, the amount of which is determined by the court.

In most cases, in case of illegal dismissal, including for absenteeism, the employer bears administrative liability. This may be a fine or temporary suspension (usually up to 90 days).

Administrative punishment for officials may also be disqualification, but not longer than 3 years.

Watch a video consultation with a lawyer about the sequence of stages of the procedure for dismissing an employee due to absenteeism:

In case of absenteeism, the employee needs to take care of proving a good reason for his absence, and the employer must make sure of its presence or absence. If there is no good reason, then the negligent employee can be fired. It is important to complete all documents correctly.

The legislation provides for the right of the employer to terminate the contract with the employee, and the administration of the business entity will act as the organizer of the termination. This can be done when an employee repeatedly fails to perform his job functions or when he is fired for absenteeism. In any case, the procedure for such termination requires complete documentation of the entire process. Let's look at how to arrange it correctly in 2019.

This definition enshrined in the Labor Code of the Russian Federation. Absenteeism is the absence of a company employee from the workplace during the day, namely more than four hours without valid circumstances.

It can be called:

• A person’s absence from work;
• Leaving an employee’s workplace for a period of time exceeding four hours;
• Being late for work by more than four hours;
• Termination of work upon refusal to work a two-week period before dismissal;
• Termination of work by an employee before the expiration of the fixed-term contract;
• The employee took advantage of his time off, but did not notify his employer about this.

It is very important to establish and enshrine in local regulations the operating mode of the enterprise, for example, in. The employee must know when his working day begins, what time it ends, and the time of breaks. Confirmation of this knowledge is the employee’s familiarization with the work schedule against signature.

Micro enterprises are allowed to include this information in. Only then can we say that he, knowing that he had a working day, was absent from his place of work.

When an employee was not present at his place for less than four hours or an equal amount of time, it is impossible to immediately dismiss him for absenteeism under Article 81 of the Labor Code of the Russian Federation. In this case we're talking about only about his failure to fulfill established labor duties. The contract with him can be terminated only if this violation is repeated several times and is recognized as repeated.

Important! The main condition for recognizing an employee’s absence as absenteeism is documenting this fact. Without documents drawn up in accordance with established rules, it is impossible to issue an order of dismissal for absenteeism. And the dismissal could be considered illegal.

In some cases, if the employee’s guilt is proven and he admits it, the parties can come to an agreement and can formalize the employee’s departure from the company in his or her form. In order not to make a negative entry in the work book and not to carry out a complex procedure for terminating the contract.

Forced absence for valid reasons

If an employee is found to be absent from his place of work, an attempt must be made to contact him and determine possible reasons what happened. It is possible that the employee has circumstances that, according to the law, exclude his guilt, and absence from work is a forced absence.

In this case, it is considered that the working person wanted to fulfill his duties, but he did not have such an opportunity. Such absence may be the result of unforeseen factors or management decisions. In any case, valid reasons for absenteeism must be documented.

Absenteeism is considered respectful, the following happened:

• Sick leave has been opened.
• The employee performed civic duties.
• Road traffic accidents.
• Funeral of close relatives.
• Natural disasters and disasters.

Due to the fault of the employer, the following cases of forced absenteeism are distinguished:

• Unreasonable refusal to hire an employee - when the fact is established in court. He appears all the time from the moment when of this employee should have been taken before the decision came into force.
• Dismissal of an employee in violation of standards labor law, including illegal termination of a contract, violation of the rules for entering information into the labor report, delay in issuing them, etc.
• The man started work, and the employment contract with him was drawn up much later.
• Delay in reinstatement of an employee who was illegally dismissed and reinstated by court order.

Workplace concept

There are two concepts that are very close in meaning, but at the same time there is a difference between them. It is a place of work and a workplace.

Place of work is a broader concept compared to the second definition. It implies the address of the location of the enterprise as a whole, where all activities are actually carried out and includes all jobs available at the enterprise.

A workplace is a place where a specific employee performs the functions specified in his employment contract and job descriptions.

The workplace may be designated in the drawn up employment agreement. If there is no information about it, then the place of work of the entire enterprise is indicated.

This distinction is especially important when registering an employee’s absenteeism, since he may be absent from his place of work, but be on the territory of the enterprise. If an employee does not have his workplace specified in his employment contract, then he cannot be fired for absenteeism. After all, he was actually present at his place of work.

What if the employee is absent during lunch time?

The law provides for the obligation to provide employees with lunch breaks. This period can range from thirty minutes to two hours. Its beginning and end, as well as its duration, are reflected in the internal regulations. Lunch break time is not included in working time.

A situation may arise that an employee was absent from work for more than four hours, but this period falls during lunch.

In this case, it is recommended to subtract from it the period attributable to lunch to determine the employee’s actual absenteeism time. This will avoid many controversial situations in the future. Because if, after subtraction, it turns out that the employee was not at work for less than or equal to four hours, then dismissal for absenteeism will be considered illegal.

However, there is an opposite opinion, based on information from the Labor Code of the Russian Federation, according to which working time is the period during which an employee performs his duties; it is not divided before and after lunch, so break time is included in it. Based on this, there is no need to subtract the lunch break time from the time he is actually absent from work.

Dismissal for absenteeism: step-by-step procedure-diagram with sample documents in 2019

Let's consider step by step order dismissal of an employee for absenteeism.

Step 1. Determine employee absence

On initial stage you need to try with the employee and find out why he is absent from work. If it cannot explain this with valid reasons, then it is drawn up in the name of the director.

This must be done in any form, and the note indicates:

• FULL NAME. and the employee's position.
• Date and time of his absence from work.
• Actions that were performed to establish the location of the employee.

If an employee who is not in his place reported directly to the director, then he can order the departments to note the employee’s absence in the documents.

Attention! The director can also, on his own initiative, try to contact relatives, contact the police, hospitals, etc. These actions do not have to be taken, but during the trial they will confirm the bona fides of the employer.

Step 2. Record the employee’s absence from work

In order to register the absence of an employee at his place, it is usually used. It includes information about the date and time of the act, the person who executed the document.

There is no separate form for the act; it is drawn up in any form. This can be done either by the personnel officer or by the employee’s immediate supervisor.

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Important! When drawing up the act, it is necessary that at least 2 people be present. They act as witnesses and sign the document at the end. When a trial is initiated, their testimony may be additional evidence in favor of the correctness of the company’s administration.

Step 3. Enter absenteeism on the time sheet

To record the appearance of an employee at his place or his absence, special forms T-12 and T-13 are used.

When it is discovered that the employee is not in his place, but the reason for the absence is unknown, the letter code “NN” or the number 30 must be entered in the timesheet.

These marks must be put in pencil, since after determining the actual reason for the absence, they will need to be changed to others.

If absenteeism during the entire working day is recorded, then instead of the code “NN” the code “PR” or digital 24 is entered.

Attention! If the absence lasted less than 4 hours, then you will need to enter the code “I” or digital 01 in the columns, and in the column below enter the number of hours actually worked.

Step 4. Request the employee to provide an explanation

The administration needs to ask the employee for an explanation for his absenteeism writing. A request for such clarification must also be submitted in writing against signature, or sent by registered mail with the described attachment and notification of its delivery to the addressee.

The request must describe the event, what was discovered, indicate its exact time and date, and also indicate the period during which the culprit must provide his explanations.

Attention! According to the Labor Code, the employee must be given a period of two days to provide explanations. If, after this period, the employee provides evidence that his absenteeism occurred due to forced or reasons beyond the control of the person himself, then dismissal for this reason will be impossible.

If after the specified period of time no explanations have been received from the employee, a report about this is drawn up. At the same time, he himself needs to clearly understand that refusal to provide an explanation will not be a reason for canceling the dismissal procedure, but rather will confirm his guilt.

Step 5. Drawing up a dismissal order

Rostrud believes that if an employee is dismissed due to absenteeism, then there is no need to separately issue an order to bring him to disciplinary liability, and separately to issue the dismissal itself. You can only draw up a dismissal order. However, the first option - with the execution of two orders at once - will not be considered erroneous.

Important! According to the law, the order must be issued within one month from the fact of receiving information about the offense. This period does not include days when the employee is ill, on vacation, or receiving the opinion of the trade union body.

The completed order must be entered into the order register for the enterprise.

Step 6. Introduce the employee to the dismissal order

After filling out the document and its approval by the head of the company, the document must be shown to the dismissed employee. He must read it and put his signature in a special column as confirmation of familiarization.

If the employee refuses to sign the order, then a mark to this effect is placed in the box. Next, a commission of at least two employees from other departments is formed, with them the contents of the order are read out loud, and then an act of refusal to sign the document is drawn up.

If the employee wants, he can ask in writing to give him a copy of this order.

Step 7. Enter information into your personal card

Attention! In the case when the dismissed person does not want to get acquainted with the document and sign (for example, he does not agree with the dismissal), then a separate act is drawn up, which is stored along with the card.

Step 8. Make an entry in the work book

The procedure according to which information is entered into work books is determined by law.

If a dismissal is made under an article for absenteeism, then the line in the labor report must look exactly in accordance with the wording of the Labor Code: “The employment contract is terminated due to a one-time gross violation of labor duties by the employee - absenteeism, subparagraph “a” of paragraph 6 of Article 81 of the Labor Code of the Russian Federation.” .

Although in other cases the reason for dismissal is not indicated in the labor report, in this situation “absenteeism” is the content of the specified paragraph of the Labor Code. The grounds column contains information about the dismissal order.

Let's consider dismissal for absenteeism, sample entry in the work book:

1	2			3	4
				Limited Liability Company "Granitsa" (LLC "Granitsa")
7	20	02	2017	Accepted into the economic department as a standard setter	Order No. 16-L dated February 20, 2017
8	11	01	2019	The employment contract was terminated due to a one-time gross violation of labor duties by the employee - absenteeism, subparagraph “a” of paragraph 6 of Article 81 of the Labor Code of the Russian Federation	Order No. 51-L dated January 11, 2019
				HR specialist Aganova M.I.
				Reviewed by: Filipchuk G.I.

Attention! If the employee who is responsible for making an entry in the work record makes an incorrect entry, or in false wording, he bears financial responsibility for his action. He will have to pay for those days that the citizen, due to a mistake, could not get a job, based on average earnings.

Step 9. Drawing up a note-calculation

In order to determine the amount of payment upon dismissal, a calculation note is filled out at the enterprise. A special T-61 uniform was created for it.

Filled on both sides. The front page contains general information about the dismissed employee, information about unused vacation days, and is filled out by the personnel officer.

On the reverse side, compensation is calculated and the total amount to be issued is determined. It is filled out by the accountant;

Severance pay, if it is established by internal documents, labor or. However, if they stipulate that upon dismissal for misconduct no severance pay will be paid, the employee does not have the right to demand it, and the company may not pay it.

In practice, a case may arise when an employee is absent on his final day, and it is impossible to issue funds to him. In such a situation, the administration must give him the payment in full the next day after the dismissed person expresses his desire to receive it.

If the payment is transferred to a salary card or bank account, the payment date can be moved to the next banking day.

Attention! When a dispute arises between a dismissed person and the company about the amount of money that needs to be paid out, then on the specified day former employee receives only the part that is not disputed. For the rest cash negotiations are held, or the issue is resolved through the courts.

Step 11. Hand over the necessary documents

After an employee is dismissed for absenteeism, he must be given the following documents:

• Work book. On the final day of work, the personnel officer makes a note of dismissal in it and gives it to the employee for review. In addition, a record of receipt of the document is made in the labor accounting book, and the employee confirms this with a signature. If on the last day the employee did not come to pick up the book (for example, he does not agree with the dismissal), or was unable to do it (he got sick), then you need to send a written request, asking to come for the document, or allow it to be sent by mail. After sending such a request, the company and the official are relieved of responsibility for failure to issue the work permit.
• , which was received by the employee for the previous 2 years and for the current one. For this document, a special form 182N is used.
• A certificate of the amount of insurance premiums that were calculated for the employee and transferred to the Pension Fund.
• Copies of internal documents affecting the employee. Upon his written request, the organization must issue copies of documents or extracts from them that relate to the work of the dismissed person - orders for admission, transfer, dismissal, etc. The forms are issued within three days from receipt of the request.
• – liability for failure to issue it can amount to up to 50 thousand rubles.

The employee may also request to provide. This document is also issued within three days from the application. For reference, there is a recommended form from Rostrud, regional authorities can offer their own forms of certificates, and it is also possible for a company to draw up a certificate in any form.

Step 12. If necessary, notify the military registration and enlistment office of dismissal

If an employee dismissed for misconduct is classified as liable for military service, then the company must report this to the military registration and enlistment office within two weeks. Notification form developed and accepted Methodical instructions on conducting military registration in companies.

In what cases can dismissal for absenteeism be considered illegal?

When an employer dismisses an employee for absenteeism, the latter may try to challenge this step. But in order to win this case, it is necessary for the responsible persons to draw up documents confirming the act with errors, or not to draw them up at all.

The reasons on which you can challenge dismissal for misconduct include:

• Mandatory procedures were not followed when recording absenteeism;
• The information specified in the act does not coincide with reality. For example, the document may contain incorrect times or dates when, in the opinion of the administration, the employee was not in his place, but he can provide evidence to the contrary.
• Incorrect preparation of documents when the employee does not agree to his transfer to another place;
• The documents do not contain written explanations from the dismissed employee about the reason for his absence from work. The court will not accept as confirmation the fact that such a request was sent to the employee by regular mail, but he did not respond to it.
• More than six months have passed since the crime was committed.

Important! If the employee can prove one of these facts, the court will reclassify his action as forced absenteeism and force the company administration to reinstate him in his previous place. If you already work in this position new person, he will need to be transferred to another place of work.

Dismissal for absenteeism (subparagraph “a”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation): an approximate step-by-step procedure

DISMISSAL FOR ABSENTANCE:

SAMPLE STEP-BY-STEP PROCEDURE

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

Dismissal for absenteeism is a disciplinary sanction, therefore, when registering this dismissal, you should take into account General requirements laws relating to dismissals and requirements relating to disciplinary action.

1. Recording the fact of the employee’s absence from work.

The main document for recording working time (appearances/no-appearances) is the working time sheet.

Also, to further confirm the fact of the employee’s absence from work, in practice, an act on the employee’s absence from work is drawn up, and reports are submitted by employees who discover the absence of a colleague.

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

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

So, 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 of an employment contract at the initiative of an employer with pregnant women, except in cases of liquidation of an organization or termination of activities by an individual entrepreneur.

3. The time limits established for the application of disciplinary sanctions 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 journal.

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

10. Payment to 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 amount of 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 financial compensation for all unused vacations.

11. Making a record of termination of the employment contract in the work book 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, producing work book forms and providing them to employers”, approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225 “On work books”, with each entry made in the work book about the work performed, transfer for another permanent job and dismissal, the employer is obliged to familiarize its owner with a signature on his personal card, which repeats the entry made in the work book. The form of the personal card is approved Federal service state statistics.

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

13. Issuance of a work book to the employee on his last working day.

If on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. Notifications are registered in the manner established by the employer, for example, in the register of notifications and proposals to employees. Upon written request from 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 application.

14. Confirmation of the fact that the employee has been issued his work book. The employee confirms with his signature the fact of receipt of his work book in the book of registration of the movement of work books and inserts in them. The form of this book is approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 N 69 “On approval of the Instructions for filling out work books.”

15. Issuance of a certificate/certificates regarding the amount of earnings(clause 3, part 2, article 4.1 of the Federal Law of December 29, 2006 N 255-FZ “On Mandatory social insurance in case of temporary disability and in connection with maternity").

If an employee refuses to receive a notification, read it, and put his signature, it is recommended to draw up an appropriate act, which is certified by the signatures of the originator and the employees present at the refusal, and send the notification to the employee’s home address by letter with a notification and a list of attachments. The act is registered in the manner prescribed by the employer in the appropriate registration journal.

Look step by step procedure bringing the employee to disciplinary liability (announcing a reprimand or reprimand).

If an employee refuses to receive a work book, it is advisable to draw up a report on the employee’s refusal to receive a work book. The act is signed by the originator and the employees 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 employer’s innocence if a dispute arises over the dismissal and the case ends up in court. The act is registered in the manner prescribed by the employer in the appropriate registration journal.

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