What is a good reason. What are the good reasons for not showing up for work? The concept of "truancy" in the Labor Code and its types

An employee can be fired for absenteeism if he is absent from the workplace for no good reason during the entire working day or shift, or for more than four hours in a row. The employee is required to explain in writing the reasons for his absence from work, on the basis of which the validity of these reasons is assessed. The employee's refusal to provide explanations is not an obstacle to dismissal.

Reasons for dismissal for absenteeism

Since absenteeism is recognized as being absent from work without valid reasons, it is important to determine which reasons can be recognized as valid and which cannot.

However, in any case, the employer's decision to recognize the specific reason for the absence of an employee at work as disrespectful and, as a result, his dismissal for absenteeism can be verified in court (Determination of the Constitutional Court of the Russian Federation of January 26, 2017 N 33-О).

Good reasons for absence from work

The Labor Code of the Russian Federation does not contain a list of valid reasons for the absence of an employee at the workplace. However, the following reasons, in particular, can be recognized as valid (Articles 142, 170, 186, 414 of the Labor Code of the Russian Federation; clause 6 of the Review of Judicial Practice of the Supreme Court of the Russian Federation for the III quarter of 2013, approved by the Presidium of the Supreme Court of the Russian Federation 05.02. 2014; Determination of the Moscow City Court of 22.10.2010 in case N 33-33169):

1) temporary incapacity for work (at the same time, untimely submission to the employer of documents confirming the fact of temporary incapacity for work cannot serve as a basis for recognizing as disrespectful the reasons for the absence of an employee at work and his dismissal for absenteeism);

2) fulfillment of public or state duties;

3) donation of blood and its components, as well as the conduct of a related medical examination;

4) participation in a strike;

5) taking into custody;

6) emergencies that caused transport problems, such as, for example, cancellation or delay of a flight;

7) suspension of work due to delay in the payment of wages for more than 15 days (upon notification to the employer in writing).

As confirmation of the reason for his absence, the employee can submit to the employer a certificate of incapacity for work, a subpoena, a certificate from a medical institution, from a transport organization.

Disrespectful reasons for absence from work

For unreasonable reasons for absence from the workplace may, for example, include (Appellate rulings of the Moscow City Court of 02/18/2016 in case N 33-2890 / 2016, of 10/04/2016 in case N 33-32613 / 2016):

1) passing a medical examination (obtaining medical advice) in the absence of a formalized sick leave;

2) time off for days worked during the vacation, if the recall from the vacation was not processed and there are no documents confirming the need to go to work during the vacation;

3) filing an application for the provision of parental leave, if the issue of granting such leave has not been resolved by the head;

4) finding a spouse in hospital treatment.

Application of disciplinary action in the form of dismissal

Prior to the application of a disciplinary sanction in the form of dismissal, the employer must request from the employee a written explanation of the reasons for his absence from work. If, after two working days, the employee has not provided an explanation, then the employer is obliged to draw up an act about this.

The employer has the right to dismiss the employee for absenteeism if the employee refuses to submit written explanations about the reasons for the absence from the workplace, as well as documents confirming these reasons. At the same time, a disciplinary sanction is applied no later than one month from the date of absenteeism, 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 (parts 1 - 3 of article 193 of the Labor Code of the Russian Federation).

If the employee has submitted an explanation and supporting documents, then the question of whether the reasons for the absence are valid is at the discretion of the employer, but can be challenged by the employee in court.

The employer's order (order) on the application of a disciplinary sanction in the form of dismissal is announced to the employee against signature within three working days from the date of its issuance, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (order) against signature, then an appropriate act is drawn up (part 6 of article 193 of the Labor Code of the Russian Federation).

When imposing a disciplinary sanction, the severity of the offense and the circumstances under which it was committed are taken into account (part 5 of article 192 of the Labor Code of the Russian Federation).

At the same time, according to the Supreme Court of the Russian Federation, the employer must assess the reasons for the absence of the employee and apply a disciplinary penalty commensurate with his misconduct, taking into account the employee's previous behavior (Determination of the Supreme Court of the Russian Federation of 03.30.2012 N 69-B12-1).

It should be borne in mind that if the procedure for applying a disciplinary sanction is violated, in particular, if the employer has not requested from employees a written explanation of the absence from the workplace, the dismissal of such employees will be recognized as illegal. However, if the employer took action to request explanations from the employee, for example, by sending a telegram to his place of residence, which was not received by him for reasons beyond the employer's control, then the employee's dismissal is lawful (Appeal rulings of the Moscow City Court of 08.24.2016 in case No. 33- 27314/2016, dated July 28, 2014 in case N 33-29793 / 14).

Appeal against dismissal

A disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes, including the court (part 7 of article 193, article 382 of the Labor Code of the Russian Federation).

If the employee was nevertheless fired, and he considers the reasons for the absence from work to be valid, then he can apply for the protection of his rights to the district court at the employer's location, place of residence or place of performance of the employment contract. The claim as arising from labor relations is not subject to state duty (Articles 24, 28, parts 6.3, 9, Article 29 of the Code of Civil Procedure of the Russian Federation; subparagraph 1 of paragraph 1 of Article 333.36 of the Tax Code of the Russian Federation).

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In conditions of great dynamics in the labor market, it is not so rare that workers, in search of a better life, go to other employers, "forgetting" at the same time to communicate their decision, without formalizing the termination of labor relations, abandoning their work book. The absence of an employee at the workplace can be caused by other, very diverse reasons.
In such situations, when the reasons for the employee's long absence from work are unknown, the employer must very clearly comply with the requirements of the law when terminating the employment relationship with such an employee, so as not to fail in case of litigation.

Basic concepts

Definition of truancy

The concept of long absenteeism is not legally enshrined. The Labor Code defines truancy, but it is not tied to its duration by day, week or month.

Fragment of the document

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Labor Code of the Russian Federation, pp. "A" clause 6 of the first part of Art. 81 of the Labor Code of the Russian Federation

Absenteeism is considered the absence of an employee from the workplace without good reason during the entire working day (shift), regardless of its (her) duration, as well as absence from the workplace without good reason for more than four hours in a row during the working day (shift).

Since absenteeism refers to gross violations of labor duties by an employee, for which the most stringent disciplinary sanction is provided - dismissal (Article 192 of the Labor Code of the Russian Federation), the author believes that there is no need to legislatively consolidate the concept of long absenteeism. Since in the absence of an employee at the workplace for one working day, and when he is absent from work for a week, several weeks, a month, an equally strict penalty can be applied - termination of the employment contract on the initiative of the employer on the basis of subparagraph "a" of paragraph 6 of the first part of Article 81 of the Labor Code of the Russian Federation.

Types of absenteeism

For ease of orientation in the issue of interest to us, we will divide absenteeism into two conditional categories.

First category- classic truancy, indicated in Art. 81 of the Labor Code of the Russian Federation, i.e. short-term. In case of a short-term absenteeism, as a rule, the employer knows the location of the employee or you can establish it (for example, when, after missing one working day, the employee went to work or when he does not appear at the workplace, but you can contact him by phone, e-mail, through others employees, etc.).

The order of the employer in such situations is clearly described in Art. 193 of the Labor Code of the Russian Federation.

Prior to the application of a disciplinary sanction, which in this case may be dismissal for absenteeism, the employer must request a written explanation from the employee. If after two working days the specified explanation is not provided by the employee, then an appropriate act is drawn up. At the same time, the employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction. The act of refusal to provide explanations is drawn up with the signatures of the employees present. It is also necessary to document the fact that the employee is absent from the workplace on a certain day by drawing up an act or collecting other evidence (testimony of witnesses, reports of the direct supervisor of the truant, extracts from the register at the checkpoint, etc.).

If the reasons given by the employee in the explanatory note on the fact of absenteeism are not recognized by the employer as valid, or the employee refused to give explanations, the employer has the right to apply a disciplinary sanction in the form of dismissal. The employer's order on the application of a disciplinary sanction is announced to the employee against a personal signature within three working days from the date of its issuance, not counting the time the employee is not at work. If the employee refuses to familiarize himself with the specified order for signature, then an appropriate act is also drawn up.

With long absences, as a rule, it is not possible to find an employee and ask him for an explanation regarding the reasons for his absence from work (for example, when an employee does not appear at work, does not answer calls, there is also no information about him at his place of permanent residence).

Long absenteeism: algorithm of actions

The problem of dismissal during long absenteeism is somewhat more complicated than with classic blitz absenteeism, for a number of reasons.

With prolonged absenteeism, objective difficulties arise in the strict observance of the requirements of Art. 193 of the Labor Code of the Russian Federation. If the employee does not appear at the workplace, then, accordingly, it becomes difficult to receive explanations from him about the fact of absence from work. However, the legislation does not prohibit, in such cases, requesting an explanation from the employee by sending him mail or telegrams to the address indicated in the employment contract and the employee's personal file.

In judicial practice, there have been cases when the court reinstated an employee at work on the grounds that it considered a receipt for sending a letter to the employee as improper evidence that the letter contained precisely the requirement to provide explanations for the fact of absence from the workplace. Therefore, it is better to send a valuable letter to the employee with a list of attachments and a return receipt or a telegram. The telegram should be sent with acknowledgment of receipt, as well as with the obligatory receipt by telegraph of a certified copy (see Example 1). The text of the notification letter can be more detailed (see Example 2).

Example 1

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Example 2

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The term for giving explanations should be counted from the date of receipt of the letter or telegram by the employee, and also add 3-4 days for the mail run if the employee, for valid reasons, cannot get to work and will send explanations by letter.

If, after two working days (plus a few days for the mail run), the employee does not provide the specified explanation, an appropriate act is drawn up. The act reflects the fact of non-receipt of explanations from the employee signed by the personnel service employee, the immediate supervisor of the truant employee, and other employees.

In this case, both in case of receipt of correspondence by the employee, and in case of its return to the sender after the expiration of the storage period, the fact of the employee's absence from the workplace should be recognized from the first day of absence from work (see Example 3) or confirmed by other evidence (absence of the employee's signature in the journal registration at the checkpoint, witness testimony, reports of immediate superiors, etc.).

Example 3

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It is better to draw up certificates of no-show for each day of absence of an employee from the workplace. At the same time, we strongly recommend that you do this day after day, and not "retroactively", because in the event of a trial, this fact may be revealed, which may lead to a decision not in favor of the employer.

If the employee received a letter, a telegram, about which there is a mark on the notification, but did not appear at work, did not provide an explanation of the fact of absenteeism within 2 working days, the employer can safely dismiss the truant.

Arbitrage practice

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Ill - warn

It should be noted that in practice there are cases when employees, trying for various reasons to cause inconvenience to employers, deliberately hide the fact of being on sick leave, and then appeal against illegal dismissal (according to Article 81 of the Labor Code of the Russian Federation, the dismissal of an employee at the initiative of the employer, except in the case of liquidation organization or termination of activities by an individual entrepreneur, during the period of his temporary incapacity for work and during the period of being on vacation is not allowed), while they require payment for forced absenteeism.

But in such situations, the courts take the side of employers, referring to paragraph 27 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004, No. 2, which reads: “When considering cases of reinstatement at work, it should be borne in mind that when implementing guarantees, provided by the Code to employees in case of termination of an employment contract with them, the general legal principle of 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 the period of his dismissal from work.

When the court establishes the fact of abuse of the employee's right, the court may refuse to satisfy his claim for reinstatement at work (at the same time, at the request of the employee who was dismissed during the period of temporary disability, the date of dismissal), since in this case the employer should not be responsible for the adverse consequences arising from unfair actions on the part of the employee ”.

If the sent correspondence with a request to explain the absence from work was not received by the employee (the letter was returned after the expiration of the storage period, no one opened the door to the postman to hand over the telegram), it is better for the employer to play it safe and take a number of additional measures to find an employee: wanted by the police, try to find out from the employee's relatives (if the employer has information about them) what happened to him, send inquiries to hospitals. In practice, few employers take such measures, since they require an investment of time and effort. Therefore, employees who are absent from work for a long time for unexplained reasons are fired for absenteeism without establishing the reasons for their absence.

However, if the reasons for the absence are subsequently recognized by the court as valid, the court will reinstate the employee in the workplace and oblige the employer to pay all amounts due to him, including forced absenteeism.

In addition, a new employee may have already been hired to replace an improperly dismissed employee by the time of the trial, who will have to be transferred to other positions or to solve this problem by increasing the number of staff positions.

In order to avoid such negative consequences, it is better for the employer to take all available measures to find the employee, despite the fact that the law does not oblige the employer to search for the missing employee.

Dismissal for long absenteeism: the main difficulties

So, having collected a complete set of documents confirming compliance with the requirements of Art. 193 of the Labor Code of the Russian Federation (requesting an explanation from an employee, drawing up acts of non-receipt of explanations, acts of absence of an employee in the workplace, collecting written testimony, collecting other evidence of the employee's absence), as well as making efforts to find an employee, as a result of which the employer came to the conclusion that the long absence of an employee at the workplace is most likely not connected with good reasons, you can proceed to the procedure for terminating the employment contract.

According to the Labor Code of the Russian Federation, termination of an employment contract for any of the reasons is formalized by an order (order) of the employer.

The general procedure for formalizing the termination of an employment contract is enshrined in Art. 84.1 of the Labor Code of the Russian Federation, according to which the employee must be familiarized with the order (order) of the employer to terminate the employment contract under a personal signature. In the event that the order (order) to terminate the employment contract cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under the signature, a corresponding entry is made on the order (order).

Upon dismissal for absenteeism, in which the employee did not appear at the workplace after a long absence, it becomes impossible to bring the order to his attention. Therefore, the rule of Art. 84.1 of the Labor Code of the Russian Federation on the need to indicate on the order the fact that it is impossible to bring the content of the order to the attention of the employee due to his absence from the workplace.

Date of termination of employment

The main question that arises when issuing a dismissal order for long absenteeism is the date of termination of employment. The problem is that according to Art. 84.1 of the Labor Code of the Russian Federation, the day of termination of the employment contract in all cases is the last day of the employee's work, except for cases when the employee did not actually work, but in accordance with the Labor Code or other federal law, he retained his place of work (position).

Based on this norm, the day of dismissal should indicate the last day of work, that is, the day preceding the first day of absenteeism. So, if the employee did not go to work on April 1 and within the next few days did not appear at the workplace, then March 31 should be indicated as the day of termination of the dismissal.

But then it turns out that the labor relationship between the employee and the employer ended on March 31, respectively, after March 31, the employee could no longer commit any labor offenses within the framework of the terminated labor contract. Consequently, dismissal for absenteeism cannot take place. In this regard, some experts propose to indicate in the order of dismissal the date of termination of labor relations, which coincides with the date of publication of the order.

However, it is more correct, in our opinion, to indicate in the order the date of termination of the employment relationship on the last day of the employee's work, which at least will be in accordance with the provisions of Part Three and Part Six of Art. 84.1 of the Labor Code of the Russian Federation.

This point of view is supported by the Federal Service for Labor and Employment. According to her letter dated 11.06.2006, No. 1074-6-1: “One of the grounds for dismissal for absenteeism (sub.“ A ”, clause 6, part 1 of Article 81 of the Labor Code) may be the abandonment of work by a person without a valid reason, who have entered into an employment contract for both an indefinite and a definite period. As a general rule, in all cases, the day of dismissal of an employee is the last day of his work. When an employee is fired for absenteeism, the day of his dismissal will be the last day of his work, that is, the day preceding the first day of absenteeism ».

Confirmation of the fidelity of this position is also contained in part six of Art. 84.1 of the Labor Code of the Russian Federation, according to which the employer is not responsible for the delay in issuing a work book in cases non-coincidence of the last day of work with the day of registration of the termination of labor relations upon dismissal of an employee on the basis provided for in sub. "A" clause 6 of the first part of Art. 81 or paragraph 4 of Part 1 of Art. 83 of the Labor Code of the Russian Federation. Thus, the legislator points out that upon dismissal for absenteeism, the last day of work does not coincide with the day of registration of the termination of labor relations.

Undoubtedly, this point of view is more substantiated and is supported by Rostrud and the State Labor Inspectorate during inspections. However, the position regarding the coincidence in the order of dismissal of the date of issue of the order with the date of termination of the employment relationship has the right to exist, since in cases where the date of termination of the employment relationship is indicated in the order of dismissal on the last working day, disputes may arise in court on this issue, which may or may not be resolved in favor of the employer. And in cases where the dates coincide, the courts, as a rule, do not make claims, since employees do not require them to change the date of dismissal from a later one to an earlier one.

Thus, so far this issue has not been clearly defined in legislation and has not been resolved with indisputable certainty. Therefore, employers can only hope that if a dispute arises about the date of termination of employment, the court will take their side.

Grounds for dismissal for absenteeism

When registering a dismissal for a long absenteeism, questions also arise as to what to lay in the basis of dismissal. In practice, there are cases when, upon dismissal for absenteeism, which dragged on for a month, in the order, on the basis of the dismissal, only the act for one of the days of absenteeism was indicated, and the employee at the court presented on this very day evidence of the respectful absence from the workplace (certificate from trauma center, etc.), and he was reinstated at work according to the court.

In order to avoid such situations, some experts recommend in the order of dismissal to indicate, for example, that "for absenteeism on April 01, 2010, for absenteeism on April 02, 2010, for absenteeism on April 09, 2010, apply a disciplinary measure - dismissal." Since the labor legislation does not contain restrictions on the possibility of applying one penalty for several offenses, if a truant presents supporting documents for one or two days of truancy, then for the rest he will no longer be able to justify himself. However, there are also opponents of this position, who refer to the fact that the Labor Code does not directly provide for the application of one disciplinary sanction for several labor violations by an employee. In addition, since absenteeism is considered by law to be one of those serious violations of labor duties by an employee, for which the strictest punishment is provided - dismissal, the meaning in indicating several days of absenteeism (in fact, several absenteeism) as the basis for dismissal is lost. Nevertheless, orders containing an indication of several absenteeism (several days of absenteeism) are usually not recognized by the courts as illegal, but are taken as evidence of the employee's absence from work for more than one day and are the basis for establishing the reasons for the employee's absence from the workplace. on each of the days specified in the order.

Terms of application of disciplinary sanction

What should not be forgotten when dismissing for absenteeism is the timing of the application of this disciplinary sanction.

According to Art. 193 of the Labor Code of the Russian Federation, a disciplinary sanction is applied no later than one month from the date of discovery of the offense, not counting the time of the employee's illness, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees.

A disciplinary sanction cannot be applied later than six months from the date of the misconduct, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The indicated time limits do not include the time of the criminal proceedings.

It should be borne in mind that judicial practice has developed such a concept as "continuing absenteeism", which assumes that the moment of detection of truancy is not the day on which the absence of the employee was discovered, but the moment of finding out the reasons for his absence: it is at this moment that the offense is considered complete and discovered. However, the court, when considering each specific dispute, may resolve this issue in a different way, therefore, it is better for the employer to insure himself and dismiss for absenteeism within a month, that is, choose those dates of absence of the employee from the workplace that are included in the month before the date of publication of the order (see. Example 4).

Example 4

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On the day of publication of the order, a record of dismissal is made in the work book.

An entry in the work book about the basis and reason for terminating an employment contract must be made in strict accordance with the wording of the Labor Code or other federal law and with reference to the relevant article, part of the article, clause of the article of the Labor Code or other federal law.

In practice, entries on the article of dismissal are usually made starting from the corresponding clause of the corresponding part of the corresponding article of the Labor Code (see Example 5).

Example 5

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According to part six of Art. 84.1 of the Labor Code of the Russian Federation “in the event that on the day of termination of the employment contract it is impossible to issue a work book to the employee due to his absence or refusal to receive it, the employer must send the employee a notice of the need to come for the work book or agree to send it by mail. From the date of sending the specified notification, the employer is released from liability for the delay in issuing a work book. "

Thus, on the day of issuing a dismissal order for absenteeism and making an entry in the work book, the employer must send a letter or telegram to the employee about the need to come for the work book or agree to send it by mail.

Missing person…

Now let's consider the option when the employer did everything possible to find the employee: he filed a corresponding statement with the police, interviewed relatives, acquaintances of the missing employee, phoned hospitals, etc. However, the comprehensive measures taken to search for results did not bring any results: the employee disappeared and no one knows what happened to him. For such cases, the legislation provides for the option of terminating an employment contract on the basis of clause 6 of part 1 of Art. 83 of the Labor Code of the Russian Federation: "Death of an employee or employer - an individual, as well as adjudication of an employee either an employer who is an individual deceased, or missing ».

If there is no news from the missing employee for more than a year, the employer may, in court, recognize the missing employee as missing, guided by the provisions of Art. 42 of the Civil Code of the Russian Federation and chapters 31 of the Code of Civil Procedure of the Russian Federation. So, according to Art. 42 of the Civil Code of the Russian Federation, at the request of interested persons, a citizen can be recognized by the court as missing if, within a year, there is no information about his place of residence at his place of residence. If it is impossible to establish the date of receipt of the latest information about the absent, the beginning of the calculation of the period for recognizing the unknown absence is the first day of the month following the one in which the last information about the absent was received, and if it is impossible to establish this month - the first of January of the next year.

And if the court satisfies the stated requirements for recognizing the missing employee as missing, the employer will be able to terminate the employment contract with this employee under paragraph 6 of the first part of Article 83 of the Labor Code of the Russian Federation.

In this case, the following entry is made in the work book (see Example 6):

Example 6

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Missing or truant: how to make the right choice

So, the legislation offers two options for terminating labor relations with a long-term absent employee.

In this regard, the question arises as to in what cases an employee who does not appear for work for a week, a month or more should be fired for absenteeism under Art. 81 of the Labor Code of the Russian Federation, and when one should expect news about him for a year or more, and then, applying the procedure for recognizing a missing citizen as missing in court, terminate the employment contract under clause 6, h. 1, Art. 83 of the Labor Code of the Russian Federation?

In each specific case, the employer must resolve the issue of the applicable article to terminate employment with a long-term absent employee, based on many factors: moral characteristics of the employee, his status, business qualities, permanent residence of the employee, territorial jurisdiction of cases of reinstatement at work and recognition citizen (missing employee) missing, etc.

Dismissal for truancy is always a disciplinary measure. Therefore, in each specific case, it is necessary to decide whether it is possible to apply a penalty to an employee if the reasons for his absence from the workplace are not reliably known.

Example 7

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The board was approached by the management of LLC "BS" with the following problem. Employees E. and L., who work as drivers in this organization for about six months, do not appear at the workplace for almost three weeks. Attempts to get through to them were unsuccessful. Taking into account that E. and L. have permanent residence in another settlement, it was also not possible to visit their homes. They were also not announced at their place of temporary residence in a hostel in Moscow during these three weeks. The personnel service in the time sheet indicated to these employees "NN" (failure to appear due to unclear circumstances) during all the days of their absence from the workplace. Also, the absence of E. and L. was recorded from the first day of absence from work.

• check with colleagues in the transport department if there were any expressions of dissatisfaction with work, bosses, etc. on the part of the missing workers, did they mention in their conversations about the possibility of termination of work in the organization.

As a result of a survey of colleagues E. and L. it turned out that they talked about returning to their native village in order to visit their families, and then try their hand at another place of work;

• send telegrams to the permanent registration addresses of employees E. and L. with a request to provide an explanation of the reasons for not showing up for work.

Officer E. received the telegram in person; a telegram addressed to employee L. was received by his wife;

• then it was recommended to wait for a response from E. and L. for about 5 days, and then issue orders on their dismissal for absenteeism.

The specified employees did not provide explanations, about which the relevant acts were drawn up;

• on the day the orders were issued (the fact that it was impossible to bring the content of the orders to the attention of the workers was recorded), it was recommended to send telegrams to both E. and L. with a request to come to receive a work book or to agree to send it by mail.

As a result, the issue was resolved, the dismissed employees did not apply to the court with claims to declare the dismissal illegal.

In this case, the employer has reliably established that employees E. and L. did not disappear under unclear circumstances, that they went home and decided not to return to work. The truants did not present the validity of the reasons for their absence from the workplace, they did not show their intentions to continue working at OOO BS. Therefore, taking into account all these circumstances, the employer made the right decision - to fire these employees for absenteeism.

In situations where an employee who has been working in an organization for several years has established himself as a wonderful specialist and responsible employee, suddenly does not go to work, the employer should not make hasty decisions and fire him for absenteeism. The measures taken by the employer to establish the reasons for the employee's absence from work may show that he disappeared under strange circumstances - neither relatives, nor friends, nor acquaintances know about his location. At the same time, one should not be afraid that the employer will have to declare the employee on the wanted list, and then recognize him as missing in court. If the missing person has relatives, then all these actions will be performed by them. The employer will need to issue an order on the basis of a court decision and make a corresponding entry in the employee's work book.

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

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

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

Step 1. We fix the fact of absence

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

Sample of the employee's absence from the workplace

Sample form of the employee's absence from the workplace

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

Step 2. We mark the failure to appear in the timesheet

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

Sample of fixing absenteeism in the time sheet

Until a written explanation is received

After receiving a written explanation

Step 3. We inform the management of the company

On the very first day of the employee's absence, his manager must inform the general director of this. This message is drawn up in the form or a 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 receive written explanations from the employee, followed by a decision to bring him to disciplinary responsibility, including in the form of dismissal.

Sample memo on absenteeism of an employee

Step 4. Asking questions

If the employee does not appear for a long time, does not answer phone calls, the employer has the opportunity to send him questions about the reasons for his absence by mail. In this case, an official letter is drawn up on the organization's letterhead with a requirement to explain the reasons for the absence. The CEO must sign such a letter. The letter is sent with an inventory of the attachment (for subsequent 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 should be reasonable, for example 15 calendar days, and include the time:

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

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

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

Sample statement of refusal to provide written explanations

Sample letter asking for reasons for absenteeism

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

Step 5. Assess the validity of the reason for absence

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

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

Sample order of dismissal for absenteeism

Step 8. Introduce the employee to the order

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

Step 9. Fill out the work book

Sample entry in the work book when dismissing for absenteeism

Step 10. We issue a work book

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

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

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

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

Good reasons for failure to appear in courtfor a person who does not have a legal education, it is rather difficult to determine. When faced with the judicial system, every citizen who does not understand legal intricacies is afraid to do something wrong. For what reasons, without harm to yourself, you can skip the court session, we will consider in this article.

Consequences of missing a court session

The consequences of missing a court session depend on what kind of case it is being held (criminal, administrative, civil proceedings) and as whom you are participating in this session.

One of the unpleasant consequences of not appearing in court may be the hearing of the case in your absence. As a result, it is impossible to defend your position, provide evidence (civil proceedings), and as a result, a decision is not in your favor. Moreover, if the reason for failure to appear was disrespectful, then an appeal to a higher authority in this case will not help.

Good reasons for failure to appear in court

So, what are the good reasons for missing the court session? The current legislation does not give a clear answer to this question, however, it contains a requirement to notify the court of the reasons for failure to appear and provide evidence of the validity of these reasons (Article 167 of the Civil Procedure Code of the Russian Federation). And it will be up to the judge to decide whether your reasons were valid.

An analysis of judicial practice allows us to conclude that, of course, a good reason for not appearing in court is the illness of the citizen himself or one of his relatives, if there is no one else to leave. Also, the reason for the impossibility of appearing in court due to objective circumstances beyond the control of the person will be valid. These are all kinds of weather, transport, man-made accidents and disasters, as a result of which it becomes difficult or impossible to overcome the distance from home to the courthouse. Of course, if you live near the court, then, for example, the judge is unlikely to consider snow drifts a good reason.

Don't know your rights?

Untimely notification of the time and place of the court session will be an objective good reason. In this case, if the court does not have data on your proper notification, the meeting will be postponed.

The practice of recognizing as a valid reason the need to leave somewhere on the same day or days on which the trial is scheduled is ambiguous. Here, it will be of great importance where exactly you need to go (within the country or abroad) and, most importantly, why (rest is a disrespectful reason).