What a walk. How to apply for dismissal for absenteeism. Before receiving a written explanation

Today we have to find out the valid reasons for absence from work. In fact, this question is extremely important. Especially if you have been working in one place or another for a short time, but for some reason you need not to visit your place of work. Unfortunately, not everyone knows good reasons. And sometimes your rights can be violated. In addition, no conscientious employee wants to receive absenteeism. Therefore, let's try to understand what are the valid reasons for not showing up for work, how to prove them.

absenteeism

The first step is to figure out what truancy is. Maybe it's not so scary after all? Or your failure to appear is not capable of being regarded as absenteeism for one reason or another?

According to the Labor Code of the Russian Federation, absenteeism is absenteeism from work without good reason. But at the same time, there is one small limitation that can save an employee from punishment. Which one? The thing is that they have the right to punish you only when the failure to appear lasts more than 4 hours in a row. Then, and only then, will it be considered absenteeism. The rest is nothing to be afraid of.

In addition, pay attention to the fact that absenteeism is not the absence of an employee for some time at the workplace, which is not the only one for him. And now it’s worth exploring the good reasons for being absent from work. When can you not be afraid of punishment from the leadership?

Disagreements

It is worth knowing exactly for what reasons you have the right not to come to work. After all, very often it turns out that the boss considers what is happening to you to be an insignificant circumstance. But in a detailed investigation, it turns out that you had a really good reason for being absent from the workplace. These are fairly common occurrences.

To play it safe once again, try to warn management that you will not come to work. And fix it somehow. If they want to fire you for absenteeism, you can use evidence that you have taken steps to notify the employer of your absence. Moreover, if you have already been fired, file a complaint with the court. You will be reinstated (if you had a good reason for being absent from work) and paid for this day. Nothing difficult, right? Only few people know under what circumstances absenteeism will not be considered as such.

Weather

Absence from work without a valid reason is grounds for your punishment. In fact, it is worthwhile to clearly understand when the employer really has the right to regard your absence as absenteeism. It has already been said that often the legal grounds and the opinion of the management in this matter do not coincide.

The list of good excuses for being away from work starts with inclement weather. That is, if for this reason you could not get to the workplace, then they have no right to impose any sanctions on you. Was there a hurricane? Biggest blizzard? Blizzard? Traffic jams or thick fog? There is no punishment for all this. Just try to notify your employer in advance of your absence. Often weather conditions are not, in the opinion of management, a really important reason that you are absent from the workplace for more than 4 hours in a row. So it's worth knowing your rights.

From vacation

The next scenario is not so common. The thing is that sometimes an employee, for one reason or another, cannot return on time from vacation. Often the weather is to blame. This item is considered a good reason for absence from work. So it will have to be taken into account by your superiors.

Of course, as in the previous case, try to warn the manager about delays. If this fails, just stock up on evidence that you really could not return home for reasons beyond your control and get to work. Otherwise, they may try to either punish you or fire you altogether. And then you have to resort to litigation. And they bring little pleasure to anyone.

Arrest

What else could be a good reason for being absent from work? Examples of some scenarios for the development of events are already known to us. But, as a rule, the conversation does not end there. In general, there is no clearly defined list in the Labor Code. So the entire responsibility for this issue falls on the shoulders of the employer, not the employee. After all, it is he who will be punished and called to account if a citizen was fired for absenteeism, which in fact is not.

Among the possible scenarios for the development of events, one can also single out arrest. If you are arrested for one reason or another, or you were detained by law enforcement officers as a witness, no one has the right to put you absenteeism. And even more so to punish in varying degrees. It is often easy to alert an employer that you have been arrested or called to testify as a witness.

Breakdowns

The next scenario is a breakdown of public transport. If you get to work, for example, by bus, then its malfunction may be included in the valid reasons for absence from work. In fact, this point requires special attention.

Why? It's one thing when it comes to public transport that moves outside the city. Or to the city directly, for example from a village or village. That is, long distance. When it is impossible to get to the workplace in any other way or wait for the next transport in time so as not to be late. Quite another is urban public transport, which runs at regular intervals.

In order for a breakdown to be considered a good reason, it is worth making every possible effort to arrive at the employer on time. Of course, try to warn your superiors about the incident. In such circumstances, no one will have the right to punish you and put absenteeism. After all, you are dealing with a good reason that does not depend on you and your desire.

Care

What else is worth paying attention to? Good reasons for being absent from work can vary. And few people know about them, because in reality the Labor Code of the Russian Federation does not contain a clear list of them. Each case has to be considered separately.

Thus, another good reason for being absent from work is caring for a needy/sick relative or child. If your help is urgently needed, no one has the right to count the absence from the workplace as absenteeism. After all, life circumstances can be different. So consider this factor. Often, employers try to impose certain punishments on him even when a citizen is caring for a sick and needy relative or child. It is illegal. Most likely, if you go to court, it will be on your side.

emergency work

Life is something that cannot be foreseen and predicted for sure. A variety of incidents and surprises can happen to everyone, no one is immune from this. So you have to constantly think about what could be good reasons for absenteeism. Why not fire an employee who did not show up for work?

We have already met with some points. But as already mentioned, there is no exact list anywhere. Each case is considered separately, and the employer is responsible for the punishment. The next scenario is nothing more than emergency repairs in the house / apartment of an employee. If a repairman comes, he should be provided with access to the dwelling. And at the same time, absence from work under such circumstances will not be considered absenteeism.

Here, too, there is one caveat - all repair emergency work should not be carried out at the request of a truant employee. In other words, we are talking only about forced measures. But if you yourself decide to call, say, a plumber at home, instead of going to work, then your absence will be regarded as absenteeism.

accidents

It is also worth paying attention to the fact that accidents are valid reasons for absence from the workplace. This is especially true for those who drive their own car, and also get to work in their own car.

Of course, if an accident occurs, it is worth warning someone about your absence. But you may not do this. Then you have to enlist evidence that you really did not skip, but could not arrive on time for work. Now this is not so difficult to do. So try to play it safe once again. And if you have a real opportunity to arrive on time, do it. Otherwise, you may be afraid of a certain punishment.

Treatment

What are good reasons for not showing up for work? There are a lot of them. But there is no clear list, as already mentioned. And it's unlikely he'll show up. So you will have to figure this out on your own.

In addition to the already listed options for the development of events, we can include in our list of good reasons for undergoing treatment, rehabilitation or visiting a doctor. Usually for this they take time off from work. But if you have not done this, it will be enough to show a referral to a doctor or a sick leave / outpatient card to prove your innocence. Sometimes a doctor can simply issue you a certificate stating that you really visited him or underwent one or another treatment. In this case, no one has the right to fire or somehow punish you. After all, it's illegal.

As you can see, there are many reasons. The issue of absenteeism and good reasons for absence from work, as a rule, has always been very acute. Indeed, in the modern legislation of the Russian Federation there is no clearly defined list of possible reasons why an employee is able to go unpunished if he is absent from work for more than 4 hours in a row.

One of the grounds for termination of an employment contract at the initiative of the employer is the commission by the employee of a single gross violation of labor duties, in particular absenteeism (clause "a", clause 6 of article 81. However, immediately upon dismissal of the offender, personnel officers face a number of questions regarding the procedure for dismissal and proper execution of the necessary documents at the same time.

The concept of absenteeism is disclosed in paragraphs. "a" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation, where absenteeism is understood as absence from the workplace without good reason throughout the working day (shift), regardless of its (its) duration, as well as in the event of absence from the workplace without good reason for more than four hours in a row during the working day (shift). Paragraph 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" lists specific cases that should be considered absenteeism:

• 1. Absence from work without good reason, i.e. absence from work during the entire working day (shift), regardless of the length of the working day (shift);
• 2. the presence of an employee without good reason for more than four hours in a row during the working day outside the workplace;
• 3. abandonment of work without a valid reason by a person who has entered into an employment contract for an indefinite period, without warning the employer about the termination of the contract, as well as before the expiration of the two-week notice period;
• 4. abandonment of work without a valid reason by a person who has entered into an employment contract for a certain period, before the expiration of the contract or before the expiration of the notice of early termination of the employment contract;
• 5. unauthorized use of days off, as well as unauthorized leave on vacation (basic, additional).

So, the employee is caught in one of the above offenses. What's next for HR representatives? First of all, it should be noted that absenteeism can be different. Conventionally, they can be divided into two groups: short-term with determining the location of the guilty employee (when the employee, for example, after missing one or several working days, appears at his workplace or does not appear, but he can be contacted by phone) and lasting absenteeism, in which it is not possible to find an employee and request an explanation from him (for example, the employee left work, there is no information about him at his place of permanent residence, he does not provide any information about himself to work, he does not answer calls).
In the first case, everything is simple. Since the dismissal under Art. 81 of the Labor Code of the Russian Federation is a disciplinary sanction, it is necessary to comply with the requirements of Art. 193 of the Labor Code of the Russian Federation. According to this article, before applying a disciplinary sanction, the employer must request an explanation from the employee in writing. If the employee refuses to give the specified explanation, an appropriate act is drawn up. At the same time, the employee’s refusal to give an explanation is not an obstacle to the application of a disciplinary sanction, but in this case it will not be superfluous to take the written testimony of colleagues and the immediate supervisor about the employee’s absence from the workplace, without forgetting to formalize them properly. After that, an order is drawn up in the form N T-8 ("Order (order) on the termination (termination) of the employment contract with the employee (dismissal)"), approved by the Decree of the State Statistics Committee of the Russian Federation of January 5, 2004 N 1.
In the second case, it is not worth firing an employee without finding out the reasons for his absence from the workplace (although some employers do this). The fact is that if the reasons for the absence are subsequently recognized as valid, the court will reinstate the employee in the workplace and oblige the employer to pay all the amounts due to him, including forced absenteeism. At the same time, another person will already be working in the place of the improperly dismissed employee, and when deciding what to do next with the latter, difficulties may arise (either to increase staff units or transfer to vacant positions). In such a situation, it is better to accept an employee on the terms of replacing a temporarily absent main employee, and after clarifying all the circumstances, the contract can be transformed into a permanent one.
To resolve this situation, it is necessary to make every effort to find the employee and get an explanation from him. To do this, you can send a letter (with a notification and a description of the attachment) to his home address or to the address of his actual place of residence with a request to explain the reasons for absence from the workplace. If this does not bring any result, you can apply to the police for a search. If the employee cannot be found, an act should be drawn up about this. At the same time, an entry should be made in the time sheet about the absence of the employee due to unexplained circumstances, since wages are calculated on the basis of these data. Of no small importance for proving the absence of an employee in the workplace are reports from the immediate supervisor and other employees who can testify to the fact of absence. All these documents will help in justifying the dismissal, if, nevertheless, the employee appears and cannot confirm the respectfulness of his absence.
If, nevertheless, it is not possible to find the employee and the relatives do not know his whereabouts, the Labor Code of the Russian Federation provides for a special basis for terminating the employment contract - the death of the employee or employer - an individual, as well as the recognition by the court of the employee or employer - an individual as dead or missing ( paragraph 6 of article 83). According to the rules of Art. 42, at the request of interested persons (in our case, the employer), a citizen may be recognized by the court as missing if during the year at his place of residence there is no information about his place of stay.
When applying a disciplinary sanction, it should also be borne in mind that it can be imposed no later than one month from the date of discovery of the misconduct. At the same time, it is important to take into account that judicial practice has developed the concept of "lasting absenteeism", which suggests that the moment of detection of absenteeism is not the day on which the absence of the employee was discovered, but the moment the reasons for his absence are clarified. It is at this moment that the offense is considered completed and discovered.

Roman Larionov, legal adviser of "Garant" company

It is the circumstances in connection with which the employee was not at the workplace that are decisive in the matter of his dismissal for absenteeism. Absence for how long is not absenteeism and what reasons are considered valid?

As labor legislation tells us, absenteeism is the absence from the workplace without good reason for more than four hours in a row during the working day (shift) or throughout the working day (shift), regardless of its (her) duration. Cases when the absence of an employee can be recognized as absenteeism are given in paragraph 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2.

Appeals of workers to the labor inspectorate on the issue of their illegal dismissal happen often, - says state labor inspector Yulia Gavrilenko. - Employers violate the dismissal procedure in case of absenteeism. They do not take an explanatory note to find out how valid the reasons for absence from work are. They do not notify that it is necessary to pick up the work book. Of course, in this case, the employee is reinstated at the workplace. The courts make decisions depending on the evidence of a violation of the labor law, and are also guided by their own convictions.

To determine the exact duration of an employee's absence from the workplace, several points must be taken into account:

• whether the period of absence of the employee fell on working time or on rest time;

• what is the duration of the specified period;

• whether the time of the employee’s absence from the workplace is correctly determined if the employee was not found at the workplace several times during the day.

Good reasons?

It happens that an employee has circumstances due to which he could not come to work. In such cases, if, nevertheless, the employee was fired for absenteeism, the court will assess how valid the reasons are for this situation.

• The employee fell ill, while there is an entry in his outpatient card or a certificate from a doctor, but there is no sick leave. In this case, the dismissal will most often be considered illegal. Even in the absence of a certificate of incapacity for work, the medical documents of the initial examination of the employee or a medical certificate are appropriate evidence of a valid reason.

• The employee could work during working hours, but underwent a medical examination on his own initiative. In this case, if the employee did not have a sick leave, passing various medical examinations is not a valid reason for not showing up for work, except in cases where the employee is required to undergo a periodic medical examination (Article 213 of the Labor Code of the Russian Federation).

• An employee's child fell ill and was unable to work because he was seeking emergency medical care for a minor. In this case, judicial practice suggests that this is still a good reason.

• The employee was on sick leave, but during the period of disability he worked and was absent only periodically, but did not coordinate the time of absence with the manager. In this situation, the dismissal will be illegal, because the employee has a sick leave, and the fact that he worked does not indicate the restoration of his ability to work. But if the employer did not know that the employee was on sick leave, due to the fault of the employee himself, the dismissal may be recognized as legal.

• The worker's home was undergoing emergency repairs, and he had to provide access to the apartment for repairmen. In this case, judicial practice speaks of the illegality of dismissal. Absence from work for these reasons is considered valid. This does not apply, for example, to the installation of various kinds of equipment or the production of current repairs at the request of the employee himself.

• The employee was absent from the workplace in connection with participation in the court session as a plaintiff. The courts consider such a reason for absence to be valid. According to Art. 46 of the Constitution of the Russian Federation, the right to judicial protection includes the right to personal participation in a court session. In addition, the calls and appeals of the courts are binding on everyone without exception and are subject to strict execution. But if the employee does not perform public duties and is simply a representative, then the reason for his absence is considered disrespectful. By the way, visiting other state bodies during working hours on personal matters is also not considered a good reason for absenteeism.

• There are cases when the employer did not notify the employee that it was necessary to go to work at a certain time. In this case, the dismissal will be considered unlawful, since by law the employer is obliged to acquaint employees under signature with local regulations directly related to their work activity. In such a situation, the absence of an employee at work is not absenteeism. The same applies to the situation when the employee was not notified of a change in his workplace.

• In the event that the employee did not go to work due to non-payment of wages accrued to him, the dismissal will be considered illegal. In the event of a delay in the payment of wages for a period of more than 15 days, the employee has the right, by notifying the employer in writing, to suspend work for the entire period until the payment of the delayed amount(part 2 of article 142 of the Labor Code of the Russian Federation). Workersk, who notified the employer in writing of the suspension of work, is absent from the workplace for a good reason.

About what is considered a disciplinary sanction and what responsibility awaits for non-compliance with the procedure for imposing a disciplinary sanction, read in the next issue.

Time is everything

The question of the correct calculation of the time of absenteeism plays a decisive role. Many different situations have already been considered by the courts, and by analyzing judicial practice, we can come to the following conclusions.

Dismissal of an employee is illegal if:

1. the employee was not present at work for four hours or less;

2. the employee was absent from the workplace for more than four hours in a row, but excluding the time of absence during the lunch break, the working time accounted for less than four hours of absence. According to Art. 108 of the Labor Code of the Russian Federation during the working day, the employee must be given a break for rest and food for no more than two hours and no less than 30 minutes. This break during working hours is not included and is not paid. That is why, when calculating the time of absence of an employee, lunch time should be subtracted from the time of absence from the workplace.

It is legal if:the employee was absent from the workplace for more than four hours of working time, but neither before the lunch break nor after it did the absence exceed four hours. The lunch break does not apply to working time, therefore, the time of absence of the employee before and after the lunch break is subject to summation.

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

• 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;
• voluntary leave.

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 truant. We will analyze the procedure for issuing dismissal for absenteeism.

Step 1. We fix the fact of absence

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

Sample act of absence of an employee from the workplace

Sample form of the act of absence of an employee at the workplace

On the first day of such acts, at least two must be done. The first - before lunch, the second - before the end of the working day. In the following days (no more than three), one act is drawn up for each day of absence. If the employee never showed up, the employer continues to draw up one act per week until the person actually appears at work or decides to send him questions about the reasons for the absence by mail. Upon dismissal, this act will serve as one of the supporting documents.

Step 2. We note the absence in the time sheet

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

Sample recording 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 first day of the absence of an employee, his manager must inform the general director about this. This message is issued in the form of a memo, in which:

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

Sample memorandum on employee absenteeism

Step 4. Ask 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 the requirement to explain the reasons for the absence. This letter must be signed by the CEO. The letter is sent with a description of the attachment (for subsequent presentation 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 must be reasonable, for example 15 calendar days, and include the time:

• postal forwarding to the addressee;
• the actual writing of the explanation;
• return postage.

As noted Vladislav Varshavsky, Managing Partner at Varshavsky & Partners Law Firm, the employee must be required to explain 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 dismiss the subordinate for absenteeism may be recognized by the court as unreasonable. As an example, the lawyer cited Ruling of the Moscow City Court No. 4g/7-8964/18 dated July 30, 2018, from which the following conclusion can be drawn: the employer did not provide the employee with the opportunity to explain the reasons for 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 salary for the period of forced absenteeism and compensate for moral damage.

If after a reasonable time there is no answer 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 with questions about the reasons for absenteeism

If the employee appeared at work and did not provide supporting documents, on the same day he must be given 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 the absence

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

If the management decided to dismiss the perpetrator, the order is issued in 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 letter of dismissal for absenteeism

Step 8. We introduce the employee to the order

The employee must be familiarized with or applied to him a disciplinary sanction (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 was 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. Fill out a work book

Sample entry in the work book upon dismissal for absenteeism

Step 10. Issue a work book

On the last working day, the employee must be paid all the cash payments due to him, as well as. 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 this day is obliged to send a notification about the need to appear for his work book or agree to be sent by mail.

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

Valid reasons for absenteeismare not clearly defined by law. Therefore, the question posed in the title of the article is asked at least once in a lifetime by every working person. Let's try to find the answer.

What is a stroll

You can't go to work without a good reason. Every worker knows this. Absence from work is fraught with: at least - an explanation with the authorities, as a maximum - dismissal for absenteeism "under the article." Absenteeism, the Labor Code of the Russian Federation tells us (Article 81, Part 1, Clause 6, Sub-Item “a”), is the absence from the workplace without good reason for more than 4 hours in a row. At the same time, if a specific workplace is not specified in your employment contract, then it is impossible to consider that you are truant, being not where you usually work, but on the territory of the organization.

Dismissal for absenteeism must be preceded by a written explanation of the employee. If the employer considers the reasons for absence from the workplace indicated by the employee to be disrespectful, then he may be fired. If the latter does not agree with such a dismissal, he can go to court. The court will decide whether the reasons for the absence from work were valid or not. So, whether there was absenteeism on the part of the employee or not.

The snag is that the law does not contain a clear list of valid reasons for absence from work. An analysis of labor legislation allows us to single out several groups of such reasons.

Subjective good reasons

Subjective reasons are inextricably linked with the personality of the employee.

First of all, it is a disease. In this case, the evidence of a justified absence from the workplace will be:

• a certificate from a doctor about a visit;
• an entry in the outpatient card on admission;
• sick leave.

Periodic medical examinations of certain categories of workers (Article 213 of the Labor Code of the Russian Federation) are a good reason. A valid reason is the illness of the child. Here everything is exactly the same as with the illness of an adult, only the sick leave will be issued not in an adult, but in a children's clinic.

An employee cannot be dismissed for absence from the workplace in connection with participation in a court session as a plaintiff, juror, witness, victim, defendant in a case. The same applies to non-attendance at work due to being in the investigating authorities in order to participate in investigative actions. The supporting document in this case is a subpoena to the court or to the investigator (interrogating officer). The same category of valid reasons includes calls to the police, work as a member of the election commission.

Justified is the absence from work in connection with the elimination of any communal accident at the place of residence of the employee. However, scheduled inspections of housing and communal organizations are not a sufficient reason for absenteeism.

Don't know your rights?

Objective good reasons

Objective reasons that make it impossible to appear at work are circumstances of various force majeure. It can be weather conditions, and emergency situations on the road, and man-made accidents or disasters, and military operations.

If the employer in these cases does not agree that the absence from work occurred due to circumstances beyond the control of the employee, and the case comes to dismissal, then, as an analysis of judicial practice in such cases shows, the reinstatement case will most likely be considered in benefit of the employee.

With a trip to court, the main thing is not to delay. Labor legislation gives a month to file a claim for reinstatement in court (Article 392 of the Labor Code of the Russian Federation).

Valid reasons for the application

There are a number of circumstances under which an employee has the right not to come to work. But the employer should be aware of this. Therefore, the employee must write an application for granting him days off.

In accordance with article 128 of the Labor Code of the Russian Federation on