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The employee did not come to work, what should I do? How to fire an employee who does not show up for work? The employee is fired. what's next

An employee came to our organization who worked for two months and after that stopped coming to work. He refuses to write a resignation letter of his own free will. Can he be fired for absenteeism?

Under what articles of the Labor Code and on what grounds can an employee be dismissed?

Nelly Zaraiskaya, Syktyvkar

Expert opinion

1. To confirm the employee’s absence from the workplace, it is recommended to draw up a report. The Labor Code does not directly provide for such a need, but without this document it is almost impossible to prove the fact of absenteeism. In judicial practice, an approach has been developed that requires the employer to provide documentary evidence of absenteeism. As a rule, the act indicates the last name, first name, patronymic and position of the employee, the date and time of his absence from work, the time the act was drawn up, as well as the last names, first names, patronymics and positions of the employees who signed the act. Companies that use usually additionally provide a printout of the readings of this system.

If the employer has not documented the fact of the employee’s absence, the court has every reason to satisfy the employee’s claim to declare the dismissal illegal. If the time of drawing up the report is not indicated, then it is unclear exactly when the inspection was carried out and, accordingly, for how long the employee was absent from the workplace. In cases where the employer draws up a report only at the end of the working day, it happens that the employee subsequently declares in court that he was at the workplace in the first half of the day and is ready to bring witnesses who will confirm this. Therefore, the evidence base will look more reliable if the act clearly indicates the periods of absence of the employee or if two or three acts are drawn up with a break of several hours depending on the length of the working day or shift (for example, every 3-3.5 hours).

If the employer has not documented the fact of the employee’s absence, the court has every reason to satisfy the employee’s claim to declare the dismissal illegal...

Accurate execution of acts will not help if they do not reflect reality or distort it. Thus, a situation where an employer deliberately prevents an employee from accessing work cannot be considered absenteeism.

The following follows from this: firstly, the employer is obliged to request a written explanation from the employee before applying a penalty. It is better to do this in writing and hand the request to the employee against signature indicating the date of receipt. You can also draw up an act stating that explanations have been demanded from the employee in front of witnesses. If the request is sent by mail, it is important to keep evidence of its sending (postal receipt, list of attachments). The Labor Code does not establish a specific period within which an explanation must be requested from the employee. Thus, the law does not prohibit demanding an explanation some time after the day of absenteeism. Secondly, after requesting an explanation, the employer must wait two working days and only after this period can make a decision on dismissal. This rule applies even if the employee immediately refuses to give an explanation, since it is possible that he will change his mind. If, after two days, no explanations are provided, this is not an obstacle, and in this case an act is drawn up.

2. The reasons why an employer can fire an employee are clearly defined.

Dismissal is possible in accordance with paragraph 5 of Article 81 of the Labor Code “Repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction.”

The employee’s failure to comply must be repeated and without good reason. Moreover, the employee must already have been subject to disciplinary action.

According to , a disciplinary offense is the failure or improper performance by an employee, through his fault, of the work duties assigned to him.

Disciplinary action is allowed only in the form of reprimand or dismissal on appropriate grounds.

In order to dismiss an employee on the basis of paragraph 5 of Article 81 of the Labor Code, his failure to fulfill his labor duties must be:

a) repeated;
b) without good reason.

If there are valid reasons, the employee must put them in writing. And at the same time, the employee must already have a disciplinary sanction formalized accordingly.

Paragraph 4 of Article 81 states that the director, his deputies and the chief accountant can be dismissed when the owner of the organization changes. The new owner does not have the right to fire ordinary employees under this article.

When an organization is liquidated or the activities of an individual entrepreneur are terminated, everyone is subject to dismissal, including pregnant women and young mothers.

According to paragraph 3 of Article 81 of the Labor Code, “Unsuitability of an employee for the position held or work performed due to insufficient qualifications confirmed by certification results,” an employee can also be dismissed.

To identify the incompetence of an employee, a special certification commission must be created, which, as a rule, includes the deputy director of the organization, a representative of the personnel department and the immediate supervisor. A special order is issued regarding its implementation. The subject is given a task that does not go beyond the scope of the job description corresponding to his position. Even if the members of the commission somehow agree among themselves, and the task may be obviously impossible to complete (for example, in terms of deadlines), you can write a complaint to the labor inspectorate and challenge the results of the certification in court. A final report is drawn up on the results of the certification.

One of the most common reasons for dismissal is absenteeism.

Absenteeism is considered absence from the workplace without good reason during the entire working day (shift), regardless of its duration.

The most important valid reason is. If, after returning to work, an employee does not provide sick leave, then the employer may give him absenteeism.

According to subparagraph a of paragraph 6 of Article 81 of the Labor Code, the basis for termination of an employment contract at the initiative of the employer may also be the absence of an employee from the workplace without good reason for four hours in a row.

This article also lists other reasons on which an employee may be dismissed, for example:

appearing at the workplace or on the territory of the organization in a state of alcohol or drug intoxication;
disclosure of secrets protected by law that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee;
committing theft of someone else's property, embezzlement, intentional destruction or damage at the place of work;
violation by an employee of labor protection requirements, if this violation entailed serious consequences or knowingly created a real threat of such consequences.

Work with personnel at the enterprise

Correctly drawn up documents will protect you from penalties from inspectors and will get you out of a conflict situation with employees. With the e-book “Working with Personnel in an Enterprise,” you will have all your documentation in perfect order.

Types of absenteeism Absenteeism without a good reason can be divided into three types - force majeure, personal circumstances and absenteeism due to an event known in advance (wedding, funeral). Let's take a closer look at each of them in this article.

The employee was away from his/her workplace for 4 hours or more during the working day.
The employee did not show up at his workplace for the entire working day, including less than four hours, if his shift lasted that long.
The employee left work before the expiration of the fixed-term employment contract, or left work without warning the employer under an open-ended employment contract, or before the expiration of the notice of early termination of the contract (Articles 79, 80, 280, 292 of the Labor Code).
The employee voluntarily took time off or went on vacation.

How to skip work without unpleasant consequences?

If attempts to find an employee have led nowhere, the employer must record the fact of the employee’s absence with a special act, which must indicate the following data: full name of the employee, his position, date of absence.

Important

The act must be signed by the persons who compiled it, as well as by employees (necessarily at least three people) confirming the information contained in the act.

Such a document is drawn up every day throughout the entire period of absence of the employee, adds Natalya Storozheva.

You can visit the missing employee and demand an explanatory note from him.

Attention

If the truant could not be found at home, then this information must be entered into the report.

The document must be certified by the signature of one of the neighbors, says SimbirSoft HR Director Ekaterina Artyushina.

10 legitimate reasons not to go to work

If you have employees working remotely, then do not be lazy to indicate the time of mandatory communication; no one is stopping you from stipulating that if an employee does not communicate within four hours during working hours, this behavior can be regarded as absence from the workplace with the ensuing consequences,” comments Olga Shulgina, HR Director of exeStation, an expert in the selection of freelance professionals for project work to solve business problems.

If the employee does not show up for work, take action on the same day.

Don't forget about new technologies. Check out the employee's social media pages.
Article 193 of the Labor Code of the Russian Federation will help you.

Can you get fired for one absence?

If the employee is valuable to the organization, the manager may limit himself to a warning or reprimand.

Appropriate registration of employee absenteeism.
That is, the issuance of an order and familiarization with it against the signature of the employee.

If the latter refuses to sign, the employer can again draw up a report about this.

Failure to comply with at least one of these rules will help the employee avoid dismissal for absenteeism.

What reasons for absenteeism can be valid?

Practice shows that not every employer immediately seeks to fire an employee for absenteeism or other violations, because finding a replacement for you may not be so easy. Therefore, if there are no other complaints against you, then the employer for the first time may limit itself to a reprimand.

This is a completely effective measure. In order to fire you (reprimand) in accordance with Article 193 of the Labor Code of the Russian Federation, you will have to follow the following procedures: 1.

Draw up an act of your absence from work, which is signed by at least two witnesses;2.

Request an explanation from you;3. Issue an appropriate order to impose a disciplinary sanction (dismissal) and familiarize you with its contents within three days.

Not all managers of small companies like to deal with paperwork, and if they do, they often make mistakes.

Conditions and legal grounds for dismissal for absenteeism

To confirm, you need to have the appropriate medical document on hand.

Not going to work due to a long delay in salary payment. An employee can exercise this right by notifying the employer in advance about his plans.

The fact of absence from the workplace must be confirmed by documents. As a rule, they are a memo written by the immediate supervisor of the “truant” addressed to higher management, or an act of absence from work, indicating the specific time of absence. The second document can be considered illegal if it is not signed by at least 2 witnesses. Download the Certificate of Absenteeism from Work
The employer needs to get an explanation from the employee.

Missed 1 working day! (for good reason)

Truancy concept
What is not truancy
Conditions for dismissal for absenteeism

Absenteeism is a fairly serious violation of labor discipline by an employee. It is expressed in the absence of an employee within his workplace for 4 or more hours without a good reason. Such a disciplinary violation gives the employer the right to legally terminate the employment relationship with its employee. Dismissal for absenteeism is provided for in Article 81 of the Labor Code of the Russian Federation, namely clause "a", clause 6, part 1.

The concept of absenteeism The Plenum of the Supreme Court of the Russian Federation summarized the practice of courts considering disputes between an employer and an employee and issued a resolution “On the application by courts of the Labor Code of the Russian Federation.”

What to do if an employee does not show up for work

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

Deputy head of the HR department of KSK Group, Aida Ibragimova, emphasizes that there are missing employees in almost every company.

Their number depends on the activities of the organization. There are many escapees in companies with large production and sales personnel, as well as in large call centers.

Regularly among the missing employees are young professionals for whom the company is their first place of work. Such employees stop going to work because they do not have time to combine it with their studies or get a new job. It happens that employees ignore their job responsibilities after a conflict with their superiors. Many deliberately do not come to service.

If you don't go to work for one day

For example, you caught a cold, and in order not to infect the team, you decided to get treatment at home.

Look for the cause of a cold depending on the season - in winter - infection (infected from Yulia from the accounting department, picked up in a crowded trolleybus), in summer - air conditioning or draft.

Or you have a terrible migraine that will not give you the opportunity to work fully.

Or you have a toothache - you will urgently need to visit the dentist.

The version of your food poisoning sounds convincing; this could easily happen to anyone.

We ate something like this at a party or in a cafe - and this is the result. Just sit at home for a day. You need to call with a complaint about your poor health early in the morning - this is more convincing, the voice of a sleepy person will sound more like a patient.

In addition, you are very worried about your absence and warn about it in advance.

You can simulate a cold by sniffing water through your nose, which will create the illusion of a runny nose.

If yt went to work one day

Women have a completely natural reason for missing work - critical days. Lack of transport, accident, natural disaster - these are completely valid reasons for not showing up at your place of work.

In order not to be late for work as a result of such force majeure, you decided not to come at all and work this day fully at another time.

Each person may have a personal need to miss a day of work, but it is always better to negotiate with management and work out your hours later.

Then there will be no need to rack your brains about how to skip work.

5/5 (6)

The employee did not show up for work: the employer’s actions

Sometimes an employee does not show up for work for several days. However, no news or explanations are received from him. The question arises: how to find a missing employee, how can he be punished? And quite naturally you want to know how to terminate an employment contract with him through the court?

You can’t just fire a person just because he didn’t show up for work..

There are a huge number of reasons for missing work, ranging from unexpected illness to detention by law enforcement agencies. It is clear that the reasons for missing work can be valid or disrespectful.

What should an employer do in a situation where his employee does not come to work for several days:

First of all, contact the employee himself or his relatives. You can find the employee’s phone number in the HR department;
If you can’t contact by phone, take his address from the employee’s personal card and send a registered letter with notification. In this letter, ask to indicate the reason for the absences. But if you still don’t achieve anything, draw up a report stating that you were unable to obtain an explanation (Article 193 of the Labor Code of the Russian Federation);
By the way, an employee who does not show up at the workplace can give an explanation for his actions within two working days, the countdown of which begins from the next day when you demanded an explanation from him (Article 193 of the Labor Code of the Russian Federation). Let's say you asked for clarification on the situation on June 25th. In this case, the two-day period will begin on June 26 and end on June 27. As a result of failure to provide explanations, draw up an appropriate act (Article 193 of the Labor Code of the Russian Federation);
submit a request to the police department. Such an application should be submitted to the nearest department of internal affairs. This can be done not only by the relatives of the missing person, but also by his manager or colleagues. As a result of submitting an application, a notification coupon is issued. Next, the request is extended to all departments, and the search begins;
when the police search has not been successful, and more than a year has already passed, you have the right, as a leader, to go to court. In his statement, according to Art. 42 of the Civil Code of the Russian Federation, you are asking to recognize a person as missing. To correctly draw up an application, follow Art. 276 Code of Civil Procedure of the Russian Federation. You can also find a sample form here. The application is accompanied by a certificate issued by the Department of Internal Affairs. This document states that search efforts were unsuccessful. In addition, support the application with internal documents of the enterprise that confirm the fact that the employee has not appeared at work for one year or more;
after all attempts made to find an employee, you have the right to dismiss him as missing (clause 6 of article 83 of the Labor Code of the Russian Federation). A special order is drawn up to terminate the employment relationship (form T-8). A corresponding entry is also made in the work book. In the future, this work book is transferred to the relatives of the missing employee.

Important! It is impossible to fire a person from work without finding out the reason for absenteeism.

First of all, you should find out why the employee does not show up at work.

Recording absence

If a person does not show up for work, this fact must be recorded. Draw up an act indicating the last name, first name and patronymic of the employee, the position he holds, and the date of absence from work. If the employee was not absent all day, then the time of arrival at work is specified. Sign the document and ask him to sign three witnesses, who thus confirm the fact of the person’s absence from the workplace.

Important! If absences continue, draw up such a report every day.

Make appropriate entries about the employee’s absence for unknown reasons in the work time sheet (form T-12, T-13, approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1).

The report card contains a specific code:

alphabetic – “NN”;
digital "30".

Perform the steps described above daily until the reasons for the person’s absence from the workplace are clarified or until the employer decides to dismiss the employee.

When the employee eventually comes to his senses and appears at the workplace, he can present a sick leave certificate. But if it turns out that some of the missed days are not confirmed by a medical document, the employee can be fired legally.

Although it is almost impossible to part with an employee during his absence, it is possible to ensure that the company’s losses are minimal. If a person does not go to work for an unexcused reason, no one pays him for those days. That is, there are no costs for an absent employee. If an employee is absent for too long, and his position is important for the enterprise, another person is hired to take his place.

ATTENTION! View the completed sample absence from work report:

Watch the video. 7 tips on how to fire an employee:

Further actions

Situation No. 1.

A few days later the employee comes to work. Demand from him a written explanation of the reasons for absenteeism. Depending on whether the reason was valid, you need to proceed further. If a person is simply playing hooky, hold him accountable.

Situation No. 2.

The employee still explained the reason for his absence, but did so by mail. As it turned out, he did not and does not have any compelling reasons for being absent from work. But he still doesn’t go to work. In this case, write an order to hold him accountable or an order to terminate the employment agreement (subparagraph “a”, paragraph 6, part 1, article 81, article 192, article 193 of the Labor Code of the Russian Federation).

Situation No. 3.

There were no explanations from the employee; he never showed up at work. Although you know that he received your letter demanding clarification of the situation, according to the notification from the post office. By and large, you have the right to fire him. But there is no need to rush in such a matter.

The fact is that there are no guarantees that the employee will receive the letter. It is possible that one of your relatives received the message, and they are not obligated to answer you.

Suddenly, at this time the person is under treatment, and you fire him. So, before you fire an employee, get specific explanations from him. And then you will decide whether to fire him or not.

Situation No. 4.

The employee doesn’t come to work, no one explains anything, you don’t know whether he received your requirements or not, or the letter was returned without an answer, etc.

In this situation, you can go two ways:

every day when the employee does not show up at his workplace, draw up a report. Record absences from work on your report card. This must be done until the reasons for the omissions are clarified. In this case, a dismissal order is not drawn up. The fact is that management is playing it safe, because by dismissing a person without finding out the reasons, you can break the law. It is possible that there are valid reasons for a person’s absence, but he cannot report them;
if the employee is absent for a long time, it is impossible to contact him, and the workplace must be occupied, management makes a decision to terminate the employment relationship with him. If someday a legal dispute arises on this matter, the decision will be made in favor of the management.

Although sometimes the court is very cautious about the situation when management sent a written demand, but received it back without any explanation. Practice shows that such a circumstance is unlikely to allow an employee fired for absenteeism to be reinstated in the workplace.

Note! Do not fire a person immediately after he arrives at work. Talk to him, get an explanation.

Otherwise, when the court finds your actions illegal, you will be obliged not only to reinstate him at work, but also to pay the average salary for the period when he was forced not to work.

No manager is immune from the fact that one fine day a lost employee will appear at the workplace along with proof that he had good reason not to go to work.

He can also prove that he simply could not answer the boss’s demand for a good reason. In this situation, you will have to cancel the dismissal order and reinstate him in the workplace. Remember that if you do not do this of your own free will, you will have to do it by court order.

But in this case, you will have additional expenses (payment of average earnings for a period of temporary unemployment) (Article 394 of the Labor Code of the Russian Federation, paragraph 41, paragraph 62 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

By the way, you will not have to pay for the period when the person did not work before the order. This is only possible if a sick leave certificate is provided. Previously, it was mentioned about the daily drawing up of a truancy report. In addition, you need to ensure that the person does not receive wages for missed days.

Please note! If, by a court decision, a person has to be reinstated in his workplace (Article 394 of the Labor Code of the Russian Federation), but instead of him you have already hired another employee, you can deal with him as follows:

offer another position that meets the qualifications or transfer to a lower position (if he agrees to perform it taking into account his state of health);
if there are no other vacancies, or the new employee does not agree with his transfer, he will have to terminate his employment contract. You cannot do otherwise, since the court ordered you to reinstate the dismissed employee (clause 2, part 1, article 83 of the Labor Code of the Russian Federation). Please note that you are obliged to pay severance pay to the dismissed employee (in the amount of two weeks’ earnings (Article 178 of the Labor Code of the Russian Federation)).

Sometimes management, without waiting for a court decision, cancels the dismissal order as soon as the missing employee appears at work.

With a new employee in this situation:

agree on a transfer to another position (Article 72.1 of the Labor Code of the Russian Federation);
terminate the employment agreement by agreement of the parties (Article 78 of the Labor Code of the Russian Federation).

Types of truancy

Absenteeism is conventionally divided into two categories. The first category includes classic absenteeism (short-term) (Article 81 of the Labor Code of the Russian Federation).

In this case, the employer knows where the employee who did not come to work is or was. This information came from the employee himself, who showed up for work or was contacted by phone or otherwise.

What an employer should do in case of short-term absenteeism of an employee is described in Article 193 of the Labor Code of the Russian Federation.

Before applying a disciplinary sanction, namely dismissal, management must communicate with the employee and find out the reasons why he did not come to work.

Remember! The request is submitted in writing. The employee has two days to respond. If this is not done on time, a specific act will be drawn up. The fact that no explanation is provided does not prevent disciplinary action from being taken.

Please note that the act of refusal to give explanations is drawn up in the presence of other employees who sign this document.

On the day when the employee did not show up for work, you need to draw up a corresponding report. You can also collect testimony from witnesses, reports from the boss of the negligent employee, and take an extract from the accounting journal, which is located at the entrance of the enterprise.

The employer has the right to dismiss an employee in case of absenteeism, if he did not give an explanation, or if the reasons presented as circumstances that prevented him from coming to work are disrespectful.

Having issued such an order, the employer must, within three days (except for the time the person is absent from work), submit a document for review to the dismissed employee against signature. When the employee refused to read the order and sign it, an act is drawn up again.

During long absences, management is unable to contact the missing employee. He does not go to work for a long time, does not answer calls and does not send a response to the demand for an explanation of what is happening.

Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues.

What should an employer do in case of long absences?

Oddly enough, it is more difficult to fire a absentee who does not appear at work for a long time than with short absences. The employer must comply with the requirements of the law, namely Art. 193 Labor Code of the Russian Federation.

When a person is away from work for a long time, it is almost impossible to get an explanation from him for what is happening. Management can send a telegram or letter to the lost employee's home address demanding an explanation.

In this situation, it is important to send the letter correctly. What does this mean? First of all, the letter must be registered with a list of attachments and a receipt. If you send a regular letter, the court may not consider the receipt to be sufficient evidence of your desire to contact the employee.

Telegrams are sent in the same way. In addition, you should take a certified copy of the sent telegram from the telegraph office.

As mentioned above, a person has two days to give an explanation. In this case, they are counted from the date of receipt of the letter. Also, another 3-4 days are added to the two days for the so-called mail mileage.

This is when the employee decides to send an explanation in writing by mail. But if after this time no explanations follow, you will have to draw up an act of non-receipt of explanations. The act is signed by the HR department employee, the truant’s manager, and other employees.

If the employee has received a letter, as in the case of returning correspondence to the place of departure, a report on the employee’s absence from the workplace is drawn up daily. In addition to the act, the boss’s memos, witness statements and documentary evidence are used (for example, the employee’s signatures are missing in the logbook at the checkpoint).

Important! Do not write reports of employee absence “retrospectively”; do it daily.

If the case goes to court and it turns out that the acts were written later, nothing good will come of it. If a letter or telegram was delivered to a truant worker, and there is confirmation of this, but he never began to fulfill his work duties and did not explain the situation in any way, he can be safely fired.

Special cases of missing employee

If a person quits his job, he needs to work for two weeks (Article 80 of the Labor Code of the Russian Federation). But sometimes the parties to the employment agreement make a common decision, and the resigning employee does not work the allotted time.

When there was no agreement and the person does not show up for work after submitting an application, a letter is sent to his address demanding an explanation. The letter also states that if the employee fails to show up for work on the 14th day from the date of submission of the application, it will be recognized as withdrawn, and the person will be fired under the article for absenteeism (Article 81 of the Labor Code of the Russian Federation).

When a person does not return to work at the end of his vacation, a corresponding report is drawn up daily. In addition, you need to contact the absentee and clarify the reasons for his absence from work.

Note! Until you have proof that the employee is really absent for an unexcused reason, or until the court recognizes him as missing, you should not write a dismissal order.

In such a situation, you need to use all possible ways to find a person, starting from calls to contacting the police. All this time, do not forget to draw up absence reports. If they are not there, the dismissal will be illegal.

How long does a person have to stay away from work to draw up an order to hold him accountable?

Since absenteeism is a disciplinary offense, the appropriate punishment should follow:

within one month after the employer learned about absenteeism (the time when the person was sick or on vacation is not taken into account);
within six months after the commission of a disciplinary offense.

If an employee does not come to work for a long time, you may think that the period for applying disciplinary action will expire.

This is wrong. The fact is that the period that begins to count from the date of discovery of the misconduct begins not from the first day, but from the moment when you definitely found out that the employee is absent.

Absenteeism is one of the violations for which the company has the right to fire. Some truants do not come for a long time. HR officers have to decide how to fire someone for absenteeism if an employee does not show up for work. What the employer needs to consider and what risks arise due to the specifics of the work.

From the article you will learn:

How can a company fire an employee for absenteeism if he does not show up for work?

The legislator defines absenteeism as absence from work without good reason. You can think about dismissal if the duration of absence is:

work shift or day, regardless of its duration;
more than four hours in a row (clause a part 6).

Let's consider how to fire an employee for absenteeism if he does not show up for work. We are talking about situations where the employee did not coordinate his actions and did not notify the employer of the reasons for absence. The Labor Code considers such an offense to be grounds for terminating a contract with an employee at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation).

In some cases, truants are absent for a long time. The procedure for dismissal for absenteeism of an employee who does not go to work for a long time is similar to that established by law for violators who began to perform duties after absence. Necessary:

record a violation,
request clarification
assess the reasons for absence,
draw up an order and other documents,
make a calculation.

Do not rush to fire an employee if he has not committed any violations before

As a rule, dismissal for absenteeism is preceded by repeated violations on the part of the employee - for example, if he never showed up for work for a long time, and before that he committed other offenses. If he performed his duties properly, a single offense does not lead to disciplinary action and dismissal.

If an employee does not show up for work and does not communicate, it is necessary to establish the reason. Otherwise, the employee may challenge the dismissal, or the legal dispute will drag on.

The company did not understand the reasons for absenteeism, and the review was delayed

The employer fired the employee for a single gross violation of labor duties. The reason was absenteeism, which the employee committed on a holiday (February 23). The employee did not agree with the wording and went to court. He demanded that the dismissal order be declared unlawful, that he be reinstated, and that he be reimbursed for wages for the period of forced absence and compensation for moral damages. The plaintiff believed that he had not committed an offense; he was absent from the workplace for a good reason with the permission of his immediate superiors, about which he wrote a corresponding statement.

The case was considered in several instances. The Supreme Court returned the dispute for reconsideration. The courts did not examine all the circumstances. They did not evaluate the testimony of witnesses who confirmed that the plaintiff, before the start of his work shift, contacted the foreman of the building unit regarding the issue of early leaving work for family reasons. The courts also did not evaluate the testimony that the plant has a procedure for registering early departure from work. The employee notifies the foreman, submits a statement through him and, with verbal permission, leaves the workplace. The employer provided internal labor regulations in the case materials. They pointed out the need to agree on the employee's departure in writing. The Supreme Court indicated that it is necessary to examine all factual circumstances, and not be limited to formal conditions (determination of the Supreme Court of the Russian Federation dated June 18, 2018 No. 66-KG18-8).

Record the violation

To decide how to fire an employee for absenteeism if he does not show up for work, collect evidence of his absence from the workplace. Can:

draw up a document that other employees will sign;
record data at the checkpoint if the enterprise has a checkpoint system;
indicate the absence on the work time sheet.

It is advisable to use every possible method of recording violations and prepare documents in a timely manner.

However, it will be more difficult to formalize such a dismissal if the work is of a traveling nature. The fact of absence is more difficult to prove. If in the employment contract the parties agreed on the traveling nature of the work, it will not be possible to refer to the access system data.

For example, the court declared the dismissal illegal. The employer presented data from the checkpoint system, which recorded the plaintiff’s absence from work during the disputed period of time. He also provided an inspection report, a timekeeper's certificate and a petition from the workshop manager. The court rejected the arguments. The employee was registered in the automotive industry and held the position of driver of the motor transport workshop. The employee reported using waybills, which recorded the time of arrival and departure. The parties did not specify the plaintiff’s workplace in the employment contract; on the contrary, they indicated a traveling nature. In such a situation, considering the employee’s absence from the office does not prove absenteeism (appeal ruling of the Sverdlovsk Regional Court dated December 22, 2017 in case No. 33-21598/2017).

How to properly fire someone for absenteeism if the employee is on a traveling job

In order not to get into a dispute and not reinstate the absentee at work, take into account the specifics of the schedule and conditions of the dismissed person. Collect evidence that will help justify absenteeism. It is possible to defend the position if absenteeism is indicated by witness testimony and the long-term nature of the violation (appeal ruling of the Moscow City Court dated December 4, 2017 in case No. 33-49714/2017).

Request an explanation

To apply a disciplinary sanction, including dismissal for absenteeism, the employer must request a written explanation (Article 193 of the Labor Code of the Russian Federation). Hand the request to the employee against signature. The question arises: how to fire someone for absenteeism if the employee does not show up for work and refuses to receive a document or sign. In this case, send a request to the employee. He must provide a response within two days. If he does not do this, draw up a report with the signatures of other employees. Keep evidence of your request. They will come in handy in case of a dispute.

If absenteeism lasts several days or the employee is absent for the first time, record each fact. Such evidence will help you defend your position in court.

For example, the company won the dispute. The court declared the dismissal legal. The employer submitted to the case materials requests for a written explanation dated 03/29/2017 and dated 03/31/2017 with a receipt stamp. Since the employee did not send the documents, the company drew up acts of refusal to provide written explanations regarding the fact of absenteeism (appeal ruling of the Voronezh Regional Court dated October 24, 2017 in case No. 33-7543/2017).

Don't fire the violator on the day he doesn't show up for work.

The law specifies the period within which the employee must give explanations (Article 193 of the Labor Code of the Russian Federation). Collecting information about the reasons for absence is a general requirement that an employer must meet in order to impose disciplinary action. Time must be given to respond. In emergency situations, sending documents or getting in touch is not always possible. If it turns out that the employee was on sick leave or was absent for other valid reasons, the court will declare the dismissal illegal and reinstate him at his previous place of work (appeal ruling of the Orenburg Regional Court dated August 23, 2017 in case No. 33-5748/2017).

Don't forget to make a calculation

Calculate wages and other payments due to the employee. In case of a dispute, confirm payment using account statements, pay slips and payment orders (appeal ruling of the Moscow City Court dated 04/04/2018 in case No. 33-14467/2018). If the employing company does not do this, the former employee can recover funds through the court (appeal ruling of the Sverdlovsk Regional Court dated February 27, 2018 in case No. 33-2495/2018).

Having considered the issue, we came to the following conclusion:
If the reasons for the employee’s absence from work are not valid, the employer has the right to dismiss the employee on the basis of paragraphs. "a" clause 6 of part one of Art. 81 of the Labor Code of the Russian Federation for absenteeism. To do this, it is necessary to follow the procedure for imposing a disciplinary sanction, as well as the procedure for dismissal, provided for by the Labor Code of the Russian Federation. An employee can be fired for absenteeism no later than 1 month from the last day of absenteeism. This period is extended for the duration of the employee’s illness and other periods provided for in Art. 193 Labor Code of the Russian Federation.
Until the reasons for an employee’s absence are clarified, it is not recommended to fire him for absenteeism, since if the reasons for his absence from work are valid, the dismissal will be considered illegal.

Rationale for the conclusion:
In accordance with paragraphs. "a" clause 6 of part one of Art. 81 of the Labor Code of the Russian Federation, an employment contract with an employee can be terminated at the initiative of the employer in the event of such a one-time gross violation of his labor duties as absenteeism. Absenteeism is absence from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as absence from the workplace without good reason for more than four hours in a row during the working day (shift).
From the above definition it follows that the main criterion for absenteeism is the absence of valid reasons for the employee’s absence from work. It is necessary to understand that the Labor Code of the Russian Federation does not contain a list of reasons that are valid. Accordingly, in each case it is necessary to assess the “respectability” of a particular reason (see also the ruling of the Investigative Committee for civil cases of the Omsk Regional Court dated October 20, 2004 N 33-3509).
In other words, since there is always a possibility that the employee is absent for a good reason, it is not recommended to fire him for absenteeism before the circumstances of his absence from work are clarified. In addition, it is possible that after the reasons for the employee’s absence from the workplace are clarified, the employment contract with him will need to be terminated due to other circumstances (for example, due to circumstances beyond the control of the parties: in connection with his conviction to a punishment that precludes the continuation of his previous work, in in accordance with a court verdict that has entered into legal force; in connection with the death of an employee, etc. (Article 83 of the Labor Code of the Russian Federation)).
In such cases, the employer must record the fact that the employee is absent from the workplace. To do this, an act is drawn up in any form, which is signed by several witnesses. Such an act can be drawn up either on the first day of the employee’s absence from work or on any of the following days. In addition, the fact of the employee’s absence should be recorded in the work time sheet, for which the mark “absenteeism for unknown reasons” (NN) is placed on it, which then, when it becomes clear that there were no valid reasons for absence, is changed to the mark “absenteeism” " (ETC).
From the moment the employee’s absence from the workplace is recorded in personnel documents, there is every reason not to accrue wages to the absent employee. In a situation where the employer has every reason to believe that the reasons for the employee’s absence from work are not valid, he has the right to dismiss him on the basis of paragraphs. "a" clause 6 of part one of Art. 81 of the Labor Code of the Russian Federation for absenteeism.
If there is no reliable information about this, then, if necessary, another person can be hired for the position of the absent employee under a fixed-term employment contract with the wording: “for the period of temporary absence of the employee, whose place of work is retained in accordance with the law” (part one of Article 59 of the Labor Code RF). You can also entrust his work to another employee without releasing the latter from the work specified in the employment contract (Article 60.2 of the Labor Code of the Russian Federation). It is also possible to temporarily transfer one of the employees to the position of a temporarily absent employee (Article 72.2 of the Labor Code of the Russian Federation). Before taking any further action, the employer should determine the reasons for the employee's absence from work. Of course, the employer is not obliged to take measures to search for missing employees. However, in order to avoid illegal dismissal, simple measures should be taken to find out the whereabouts of the employee (for example, send a registered letter with return receipt requested to the employee’s last known address with a request to explain the reasons for absence from work, go to the employee’s place of residence, and, if possible, communicate with the spouse, relatives and neighbors to find out the reasons for the employee’s absence, inform the internal affairs body).
Let us recall that when dismissing an employee for absenteeism, the burden of proving the fact of its occurrence lies precisely with the employer, who must have evidence of its commission by the employee (clause 38 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 ", hereinafter referred to as the Resolution of the Plenum of the RF Armed Forces). If the employer finds out that the reasons for the employee’s absence from work are not valid, he has the right to fire him for absenteeism.
In accordance with Art. 192 of the Labor Code of the Russian Federation, absenteeism is a gross violation of labor duties by an employee, that is, a disciplinary offense, and dismissal is a disciplinary sanction for its commission. This means that when dismissing for absenteeism, the employer must comply with the procedure for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation. If this procedure is violated, then in the event of a lawsuit, the court will most likely recognize the dismissal as illegal, even if it is proven that the employee committed absenteeism.
First of all, the employer must meet the deadlines for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation.
Dismissal for absenteeism can be done no later than 1 month from the date of its discovery, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees, and no later than 6 months from the date of its occurrence.
If an employee commits long-term absenteeism, the monthly period for detecting an offense should be calculated from the last day of absenteeism, and not from the first (see, for example, the ruling of the Ryazan Regional Court dated April 25, 2007 N 33-580; Generalization of review practice in the 1st half of 2008 - by the courts of the Saratov region, cases of termination of an employment contract at the initiative of the employer and on other grounds not related to the will of the employee).
The second most important condition for the proper execution of dismissal for absenteeism is correct documentation (the general procedure for dismissing an employee for absenteeism is given, for example, in the letter of Rostrud dated October 31, 2007 N 4415-6).
Article 193 of the Labor Code of the Russian Federation requires that even before applying a disciplinary sanction, the employer requires an explanation from the employee in writing. It is extremely difficult to request written explanations from an employee who does not show up at work, and to do this in such a way that it can then be proven that such an explanation was requested. Therefore, it is almost impossible to fire an absent employee for absenteeism. For this reason, many experts recommend waiting until the employee shows up at work and does not provide supporting documents.
If the employer nevertheless decides to dismiss the employee for absenteeism in his absence, then in case of litigation, he must collect evidence that he fulfilled all his duties in the process of applying a disciplinary sanction.
In Art. 193 of the Labor Code of the Russian Federation does not say exactly how the employer must request a written explanation (at a personal meeting or by sending a letter with notification). Therefore, we can suggest the following course of action. The absent employee is sent by registered mail with a notification request to give written explanations about the reason for his absence from work. If two working days have passed since the employee received the letter, and the employee has not provided an explanation, then a corresponding report is drawn up. Failure by an employee to provide an explanation is not an obstacle to applying a disciplinary sanction, that is, dismissal (part two of Article 193 of the Labor Code of the Russian Federation). In this case, the postal notification must bear the signature of the employee himself, this proves that the employee received the employer’s request.
If a postal notice is returned with a note indicating that the recipient is absent, the sending of such notice cannot be considered a proper request for a written explanation. Therefore, in such a situation, we also do not recommend filing a dismissal for absenteeism. During a period of long-term absence of an employee, the employer may periodically send him letters demanding an explanation, waiting for the employee to personally sign the notice.
Based on the act of absence from the workplace, as well as a written explanation or an act of the employee’s failure to provide an explanation, the employer issues an order (instruction) on dismissal.
The order is announced to the employee against signature within three working days from the date of its publication, not counting the time he is absent from work (part six of Article 193 of the Labor Code of the Russian Federation). The absent employee should be sent a telegram or registered letter with a notification inviting the employee to familiarize himself with the dismissal order and to receive a paycheck and work book. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act is drawn up.
Please note that the date of the dismissal order must be the date of its actual issuance within the time limits for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation. But the date of dismissal should be the last day of work of the employee, except for cases where the employee did not actually work, but in accordance with the Labor Code of the Russian Federation or other federal law, his place of work (position) was retained (part three of Article 84.1 of the Labor Code of the Russian Federation).
According to Art. 84.1 of the Labor Code of the Russian Federation, on the day of termination of the employment contract, the employer is obliged to issue the employee a work book. 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. From the date of sending this notification, the employer is released from liability for the delay in issuing the work book.
In addition, the employer is not responsible for the delay in issuing a work book if the last day of work does not coincide with the day of registration of termination of employment when an employee is dismissed for absenteeism.
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.
Upon dismissal, the employer is obliged to make a settlement with the employee. In Art. 140 of the Labor Code of the Russian Federation states that payment of all amounts due to the employee from the employer is made on the day of the employee’s dismissal. 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.
Since the reasons for absence from work in the situation under consideration are unknown, it cannot be completely excluded, for example, that the employee is on sick leave.
However, it should be borne in mind that when implementing the guarantees provided by the Labor Code of the Russian Federation to employees in the event of termination of their employment contract, the general legal principle of the inadmissibility of abuse of rights, including by the employees themselves, must be observed. In particular, it is unacceptable for an employee to conceal temporary disability during his dismissal from work. If the court establishes that the employee has abused his right, the court may refuse to satisfy his claim for reinstatement at work (while changing, at the request of the employee dismissed during a period of temporary incapacity, the date of dismissal), since in this case the employer should not be responsible for the adverse consequences that occurred as a result of unfair actions on the part of the employee (clause 27 of the Resolution of the Plenum of the Armed Forces of the Russian Federation). If an employee dismissed for absenteeism applies to the court with a demand for reinstatement at work and presents a certificate of incapacity for work, the presence of which he hid from the employer at the time of requesting an explanation from him, then a signed notification of delivery of a letter in which the employer was interested in the reasons for his absence from work, will help the employer prove in court the fact of abuse of rights by the employee.
As explained in paragraph 41 of the resolution of the Plenum of the Armed Forces of the Russian Federation, if, when resolving a dispute about the reinstatement of a person dismissed for absenteeism and the recovery of average earnings for the period of forced absence, it turns out that the absence from work was caused by an unexcused reason, but the employer violated the dismissal procedure , the court, when satisfying legal requirements, must take into account that the average salary of a reinstated employee in such cases can be recovered not from the first day of absence from work, but from the day the dismissal order is issued, since only from this time absenteeism is considered forced.

Prepared answer:
Expert of the Legal Consulting Service GARANT
Bakhtina Anastasia

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Alexandrov Alexey

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.

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