Dismissal for absenteeism

The employment contract can be terminated by the employer in the event of a single gross violation by the employee of labor duties: absenteeism, that is, absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as in case of absence from work place without good reason for more than four hours in a row during the working day (shift) - paragraphs. "a" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation.

Clarifications of the Supreme Court of the Russian Federation on dismissal for absenteeism

Judicial practice of dismissal for absenteeism

1. Satisfying the requirements for reinstatement, the court took into account the fact that the plaintiff worked for the defendant for 45 years, is a veteran of labor, was not subject to disciplinary liability for all the time of work, therefore the court concluded that a disciplinary offense on the part of the plaintiff took place, however, when he was dismissed for absenteeism, the administration did not take into account the provisions of Article 192 of the Labor Code of the Russian Federation

The plaintiff was unable to go to work for health reasons, he had a heart attack. The next day, he went to the doctor, where he was given a sick leave, first for outpatient treatment, and then he was assigned inpatient treatment.

The court concluded that the claims for reinstatement are legitimate and justified, the claims for the recovery of wages for the period of forced absenteeism are also subject to satisfaction (Decision of the Moscow Regional Court of April 5, 2011 in case N 33-7511).

2. The plaintiff was supposed to be on a business trip for 5 days, but left the city earlier, that is, was absent from the workplace for more than two days. The traveling nature of the plaintiff's work does not give him the right to move freely around the country during working hours at the time when the plaintiff was sent on a business trip to a specific city for a certain period

D. filed a lawsuit against LLC for reinstatement, and asked the court to reinstate him at work as a deputy CEO for personnel management, collect average earnings during forced absenteeism, compensation for non-pecuniary damage.

The claims were dismissed, since it was proved that the plaintiff should have been in Yaroslavl until June 23, 2010, instead he left the city on June 21, 2010, and went to work in St. Petersburg only on June 24, 2010, then is absent from the workplace for more than two days (dated March 28, 2011 N 33-4247 / 2011).

3. The court declared the dismissal for absenteeism illegal, indicating that since the employment contract did not specify a specific workplace claimant, in accordance with Art. 209 of the Labor Code of the Russian Federation, it is considered to be the place where the plaintiff should have been or where he needs to arrive in connection with his work

The court of first instance decided: to reinstate the plaintiff at work in his position, to recover compensation in favor of the plaintiff moral damage 20000 rub.

The court stated the following. It appears from the case file that official duties the plaintiff is connected with the performance of work not only in the office, but also outside it. On October 27, 2010, the plaintiff performed duties in the city of Solikamsk, participating in the inspection of damaged cargo, and then was summoned to the Perm Internal Affairs Directorate. Since the specific workplace of the plaintiff was not specified in the employment contract, in accordance with Art. 209 of the Labor Code of the Russian Federation, it is considered the place where the plaintiff should have been or where he needs to arrive in connection with his work. Therefore, the court, properly guided h. b Article. 209 of the Labor Code of the Russian Federation, came to the conclusion that the defendant's arguments about the plaintiff's absence from the workplace without good reason (Cassation ruling of the Perm Regional Court dated March 16, 2011 in case N 33-2325) were unfounded.

4. The court correctly determined the circumstances of the employee's absence from the workplace and concluded that there were no grounds for dismissing the employee for absenteeism

N. filed a lawsuit against MUZHEP-12 for reinstatement, pointing out in support of the claim that she was illegally dismissed from the position of a janitor for absenteeism, while at that time she was sent by the employer to the medical commission.

The claim is satisfied. The court found that the administration of MUZHEP-12 issued a referral to N. to undergo a mandatory medical examination. At the same time, based on the provisions of Art. 212 of the Labor Code of the Russian Federation, it has no legal significance whether this medical examination was preliminary (Article 69 of the Labor Code of the Russian Federation) or periodic (Article 213 of the Labor Code of the Russian Federation). In any case, the plaintiff could not be admitted to work without passing a medical examination.

Thus, having established the validity of the reasons for the plaintiff's absence from work from December 12 to December 19, 2006, also taking into account that the medical examination was passed by N. within a reasonable time, the court reasonably recognized her dismissal under paragraph "a" part 6 of Art. 81 of the Labor Code of the Russian Federation for absenteeism without good reason is illegal and, guided by the requirements of Art. 394 of the Labor Code of the Russian Federation, decided to reinstate her at work (see Generalization (review) of practice

5. Dismissal for absenteeism was recognized by the court as justified, because the plaintiff was not deprived of the obligation to appear at his workplace after the end of his interrogation in law enforcement agencies. In addition, the plaintiff had real opportunity notify the employer of the reasons for their absence from the workplace

The plaintiff asked the court to recognize his visit on May 28, 2010 and June 30, 2010 to law enforcement agencies as a good reason for absence from the workplace, to cancel the order to impose disciplinary action for absenteeism, reinstatement at work, recover wages from the defendant for the period of forced absenteeism.

The claim was dismissed, since it was established that the plaintiff was actually summoned to the premises of the law enforcement agency on 30.06.2010 by 09.30, but did not appear at the indicated time, in fact he was in the premises of the law enforcement agency on 30.06.2010 from 15.00. 05 min. until 16 o'clock. 15 minutes.

The absence of the plaintiff at the workplace on 05/28/2010 and throughout the entire working day on 06/30/2010 without good reason indicates that the employer has legal grounds for dismissing the employee for absenteeism under paragraphs. "a" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation (Determination of the St. Petersburg City Court of March 1, 2011 N 33-2871 / 2011).

6. The court found the repeated dismissal of the plaintiff for absenteeism illegal, since the employer did not indicate in the order that, on the basis of a court decision, he reinstates the plaintiff at work, in what position and with what mode of work, taking into account the conclusion of the ITU on the loss of professional ability to work

The plaintiff indicated that she was dismissed by the defendant on August 28, 2009 for absenteeism, however, by a court decision, the dismissal was declared illegal, she was reinstated at work. On February 15, 2010, the plaintiff was dismissed again for absenteeism due to absence from work in the period from January 14, 2010 to February 4, 2010.

The court satisfied the claims, it was decided to recognize the wording of V.'s dismissal under paragraph 6 of paragraph 2 as illegal. "a" Art. 81 of the Labor Code of the Russian Federation (absenteeism), change the specified wording of dismissal to dismissal of one's own free will, that is, Art. 80 of the Labor Code of the Russian Federation. At the same time, the court indicated that the court decision on the reinstatement of the employee at work is subject to immediate execution, regardless of the fact that the specified execution is not recorded in the operative part of the decision. This follows from the provisions of Art. 396 of the Labor Code of the Russian Federation. However, from the materials of the case, it is not seen that the employer in full immediately after the court decision executed it, that is, ensured the plaintiff's performance of her labor duties, and brought this to her attention. According to the order of 01/14/2010, the employer only canceled the order to dismiss the plaintiff of 08/28/2009, this order does not contain a record that the plaintiff was reinstated at work as a bricklayer and with what functional duties, in addition, this order was not brought to the attention of the employee (Cassation ruling of the St. Petersburg City Court dated February 14, 2011 N 33-1934 / 2011).

7. The defendant's failure to provide evidence of the employee's absence from work without good reason led to the cancellation of the decision. The defendant did not provide the court with evidence that the plaintiff was absent from work without good reason during the disputed period

8. A disciplinary sanction must correspond to the severity of the offense committed. The court did not take into account the long work experience at the enterprise, which was previously this employee no disciplinary action, has a dependent minor son, receives child benefit as a single mother

The plaintiff was dismissed under sub. "a" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation (for absence from the workplace without good reason for more than four hours in a row. She asked to recognize the dismissal as illegal, since she was absent from the workplace for a good reason, and as a result: to reinstate her at work, to recover the average earnings for the entire time of forced absenteeism, compensate for moral damage.

Reversing the decision of the court, the panel of judges indicated the following. The court reasonably concluded that the plaintiff was absent from work without good reason for more than four consecutive hours on 21 January 2004. However, the court did not take into account the requirements of paragraph 53 of Resolution No. 2 of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 "On the application by the courts Russian Federation Labor Code RF" that the employer needs to provide evidence indicating not only that the employee has committed a disciplinary offense, but also that, when imposing a penalty, the severity of this misconduct, the circumstances under which it was committed, the previous behavior of the employee, his attitude to work.If, when considering a reinstatement case, the court comes to the conclusion that the misconduct really took place, but the dismissal was made without taking into account the above circumstances, the claim may be satisfied (extract from the ruling of the Judicial Collegium on civil affairs N 33-2619 of August 4, 2004; (26), 2006)

9. Failure by the employer to provide evidence of the legality of dismissal for absenteeism entails the restoration of the plaintiff at work or, at his request, a change in the wording of dismissal to dismissal of his own free will

By order, the plaintiff was dismissed from the position of foreman under paragraph 6, sub. "a" Art. 81 of the Labor Code of the Russian Federation for absenteeism.

Satisfying the claims of the plaintiff, the panel of judges pointed out that in March-April 2004 there was no work in RSU LLC and employees were called to work if there were volumes of work. He performed his duties, searched for the scope of work, worked at DCS facilities. The court concluded that the defendant lawfulness of L.'s dismissal under paragraph 6 sub. "a" Art. 81 of the Labor Code of the Russian Federation did not prove (extract from the ruling of the Judicial Collegium for Civil Cases N 33-3047 of September 1, 2004; Bulletin of Judicial Practice of the Omsk Regional Court N 1 (26), 2006)

10. In the presence of evidence testifying to the illness of the employee, the provision of medical care to him during this period, the absence of a motive for him to hide the reason for absenteeism due to illness, the court had reason to critically consider the explanations of the representative of the defendant that the employee refused from giving written explanations and was acquainted with the dismissal order. Failure to clarify the reasons for the absence of the employee at work and the date of familiarization with the order led to the cancellation of the decision

Ch. filed a lawsuit against OMUP for reinstatement. Dismissal under paragraphs. "a" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation considers it illegal, since it works according to the approved schedule for each month. On October 31, 2003, having completed his shift, he went home.

Satisfying the demands, the judicial board indicated that there was no written explanation of Ch. about the reasons for absenteeism. The court was presented with a copy of the call card of the MUZ "Emergency Station", according to which on November 3, 2003 Ch. health care due to the exacerbation of his disease. At the same time, medical workers established the fact of a deterioration in his health about a week before the call.

On November 4, 2003, due to an exacerbation of Ch.'s illness, a sick leave was issued; on November 11, he was hospitalized in a hospital, where he remained until March 10, 2004. On March 9, 2004, the Bureau of Medical and Social Expertise established the second disability group due to the same disease.

In the presence of body temperature, high blood pressure indicating the presence of the disease, the driver could not be released on the flight by medical workers. In this connection, the argument of the representative of the defendant that Ch. had committed absenteeism on these days should be questioned. (Extract from the Determination of the Judicial Collegium for Civil Cases of the Omsk Regional Court N 33-2145 dated July 7, 2004; Bulletin of Judicial Practice of the Omsk Regional Court N 1 (26), 2006)

11. The court correctly concluded that the employer had the right to dismiss the employee for unauthorized use of the day off under paragraph “a” of Part 6 of Art. 81 of the Labor Code of the Russian Federation (for absenteeism). The fact that the plaintiff took a day off with the permission of the employer is not confirmed by the case materials.

By order of December 5, 2006, T. was dismissed from work under paragraph "a" part 6 of Art. 81 of the Labor Code of the Russian Federation - absenteeism (absence from the workplace without good reason for more than four hours in a row during the working day), committed on October 27, 2006.

Reinstatement claim denied because it is clear from the case file that at the court session T. claimed that she had time off, and she took it on October 27, 2006 with the permission of her immediate supervisor B., so her dismissal for absenteeism is illegal. I did not write an application for time off with the permission of B. At the same time, this statement of the plaintiff is untenable, since the case materials are not confirmed. So, interrogated as a witness in the court session, B. testified that the employee always writes an application for time off (see Generalization (review) of the practice of consideration by district courts Novgorod region cases on labor disputes for 2007).

12. Dismissal of the plaintiff under paragraphs. "a", paragraph 6 of Article 81 of the Labor Code of the Russian Federation, the court found it illegal for absenteeism, the wording of the dismissal was changed to "dismissal of one's own free will." The court denied satisfaction of the claims for the recovery of the average wage for the period of forced absenteeism, compensation for non-pecuniary damage, since the defendant terminated his status as an entrepreneur

By order, the plaintiff, working as a seller for IP V., was dismissed under Art. 81 p. 6 p. "a" of the Labor Code of the Russian Federation for absenteeism without good reason.

The court came to the correct conclusion about the illegality of her dismissal, since the defendant did not provide the court with evidence of the validity of her dismissal, the fact that the plaintiff was absent without good reason was not proven by the defendant. The court also established a violation of the procedure for dismissing the plaintiff from work, since she did not receive explanations for the violation of labor discipline imputed to her. Since by the time the case was considered, the defendant had terminated his status as an entrepreneur without education legal entity, the court rightfully satisfied the plaintiff's claims, recognizing her dismissal under Art. 81 p. 6 "a" of the Labor Code of the Russian Federation illegal, in accordance with Art. 394 of the Labor Code of the Russian Federation changed the wording of her dismissal to "dismissal of her own free will" (Determination of the Irkutsk Regional Court of April 21, 2011 in case No. 33-3479 / 11).

13. The employer justifiably recognized the fact of shortage and investigation of the criminal case on this fact, by virtue of Art. 21 of the Labor Code of the Russian Federation did not release the plaintiff from the obligation to observe labor discipline, come to work and conscientiously fulfill her labor duties

By order B. was dismissed from work under paragraphs. "a" part 6 of Art. 81 of the Labor Code of the Russian Federation for absenteeism. The claim for recognition of the dismissal as unlawful was denied. The court stated the following.

On August 7, 2003, after the next inventory, the keys to the pavilion were taken from the plaintiff, and all the goods were taken out of the pavilion. Disagreeing with the actions of the management, the plaintiff did not go to work on August 8, 2003.

Specified by the plaintiff in the explanatory reasons for the absence from work, the employer was reasonably recognized as disrespectful.

The fact that the keys to the pavilion, which was subsequently closed, could not be considered a good reason for the plaintiff's absence from work. Based on clause 2.3. of the employment contract, the plaintiff's workplace was not the pavilion, but the Alyonushka trading house (as follows from the employment contract), however, the plaintiff did not start working at the trading house until August 11, 2003. After that, she was absent from work, although she had no obstacles to this.

The fact that, due to the discovery of a shortage of goods in pavilion No. 4, the plaintiff was suspended from work directly in this pavilion, also did not relieve her of the obligation to come to work at the Alyonushka Trading House (Generalization (review) of the practice of consideration by district courts of the Novgorod region cases on labor disputes for 2007).

14. If labor contract terminated under par. "a" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation for absenteeism, it must be borne in mind that dismissal on this basis is possible only if absenteeism took place for an unexcused reason; there are cases when employees dispute the illegality of their dismissal in the absence of a dismissal order; there are cases misapplication courts of the provisions of h. 1 Article. 261 of the Labor Code of the Russian Federation, according to which the termination of an employment contract at the initiative of the employer with pregnant women is not allowed, except in cases of liquidation of the organization or termination of activities individual entrepreneur. On dismissal under paragraph 6 of Art. 81 of the Labor Code of the Russian Federation (clauses "a", "b") (single gross violation of labor duties), see also "Overview of the practice of consideration by courts Kaliningrad region in 2008 civil reinstatement cases".

Truancy is a common occurrence that has brought a lot of headaches to employers. It is necessary to get rid of an irresponsible employee, to set an example for others, and to find a more responsible person to replace him. Such dismissal refers to the termination of employment at the initiative of the employer. This may cause controversy. There are also cases when the boss threatens to punish a slightly delinquent employee for absenteeism, although this is not true according to the law. Next, we will figure out when dismissal for absenteeism is possible. The article of the Labor Code of the Russian Federation 2017 will help us with this.

What is considered truancy?

Article 81 defines absenteeism as the absence of an employee at a place assigned to him at the time of work, throughout the working day or more than 4 hours during the allotted time without sufficient reason. It seems that it is formulated quite clearly, but what can really be accepted as a good reason? The law does not explain or specify this point.

Depending on the situation

Thus, the fact of absenteeism is established based on the situation. For different situations the result may not match. Reasonable causes include serious illness, illness, or death. loved one, unexpected problems related to the place of residence, the birth of a child and the like. To confirm that you skipped for a reason, you must provide a certificate. By the way, it is also better to have written confirmation that you have asked for leave from your manager.

What equates to walking

We figured out what absenteeism is, but there are still some cases that can be equated with absenteeism:

• If a person decided to quit and did not inform anyone, this cannot be considered a sufficient reason to skip work. His action can be considered absenteeism, and accordingly, the employer can fire him for this.
• Also, you can not miss work if the employer violates the rights of employees. This should be reported to the relevant authorities, and for failure to appear, they can legally be fired.
• A signed letter of resignation means that it is necessary to work at the enterprise for another two weeks. This will enable the employer to find a replacement. A pass is absenteeism, which will cause dismissal for absenteeism article 81 of the Labor Code of the Russian Federation.
• You can not arbitrarily skip working hours, even with accumulated time off. First you need to agree with your supervisor, get permission, and only then take yourself a day off. Of course, some cases, like donating blood, allow decisions to be made in unilaterally. However, once again to talk with the boss does not hurt at all.
• The vacation schedule only determines when you can take it. To do this, you must submit an application. If this was not done, then the absence of work will be considered absenteeism. If you are not a valuable employee, then this can cause serious consequences, up to and including dismissal.

What is not considered absenteeism?

This item will be useful for employers to avoid disputes, since not every absence from the workplace can be considered absenteeism. Let's take a look at the options in more detail.

Vacation

Anyone can take their legal vacation. Thus, if the employer demands to go to work earlier, and the employee refuses, his actions will not be regarded as absenteeism. Leave cannot be interrupted without his consent. An exception may be emergency situations, the elimination of accidents, as well as the resumption of communications.

Overtime work

You can also refuse overtime and from the requirement to go to work outside the schedule, regardless of the day of the week and year. Exceptions are emergency cases.

sick leave

If, for medical reasons, a person cannot perform a certain type of work, he may refuse them. It is advisable to provide a certificate in advance to the head.

Refusal to go to work due to late pay

With a long delay in salary, you can refuse to go to work. Management must be informed of this decision in advance. In this case, you simply do not have the right to be fired for absenteeism.

Dismissal for absenteeism

This action must be carried out in accordance with the established procedure. If it is not complied with, the employee may well go to court, after which he will be reinstated and receive compensation.

Dismissal procedure

1. The first step is to establish the fact of absenteeism. In this case, the direct supervisor must write a memo to the higher management or draw up an act with the participation of 2-3 witnesses, which will indicate the time of absence.
2. Next, the employee must submit a request for a written explanation. In the event that the grounds can be considered valid, it is necessary to confirm this. Otherwise, it will be such a reason can not be considered.
3. Only two days are given for the presentation of evidence. If the deadline is missed, the manager must draw up an act of refusal to report the reason for the absence.
4. In the end, the employer just needs to issue a dismissal decree, which the employee needs to be familiarized with. The latter must put his signature. If this is not done within three working days, it is enough to draw up an act again. This will complete the work with the irresponsible employee.

Conditions for dismissal

It is worth noting that after the fact of absenteeism, the employer will have one month to apply a disciplinary sanction against the offender. Otherwise, this fact cannot be addressed. The employer does not always resort to immediate dismissal. Often, if an employee is of value, he is warned, reprimanded, or another kind of penalty is applied. In case of systematic absenteeism or poor performance of work, dismissal will be inevitable.

Dismissal order

It is enough for the employer to issue an order to terminate the employment contract. For this, there is a generally accepted form of T-8. When indicating the reasons, it is necessary to enter only the details of the notes, acts and attached documents that confirm the fact of absenteeism. Further, the work book indicates Article 81 of the Labor Code of the Russian Federation on dismissal for absenteeism. Thus, the fact will be confirmed and it will be easily found out at the new place of work.

Conclusion

Knowledge of the law will help the employee to stop the illegal actions of the employer and achieve justice, since an entry in the work book about dismissal due to absenteeism can seriously ruin life. On the contrary, it will save the employer from possible disputes that will arise due to an incorrect definition of the situation, as well as due to incorrect dismissal.

Dismissal for misconduct, which includes absenteeism, is a rather difficult task for the manager and the personnel department. The procedure is not easy to implement, as the behavior of the employee must be properly recorded.

A citizen may be absent due to valid reasons, and this concept is rather ambiguous. In addition, non-compliance with the order of the procedure is fraught with lost lawsuits.

Characteristics and description of concepts (Article 81 of the Labor Code of the Russian Federation)

In paragraph 6 of Art. 81 of the Labor Code of the Russian Federation lists single gross violations of labor discipline, for which they can be fired. The first in their list (paragraph "a") is absenteeism.

Its signs:

• the absence must be during the established working hours at the enterprise;
• duration - throughout the entire time (shift, day) or 4 hours in a row;
• location of violation - workplace;
• there should be no valid reason for such an absence.

Employer's initiative (Article 77 of the Labor Code of the Russian Federation)

The basis under consideration belongs to those on which the employer has the right to initiate the procedure for vacating a position (clause 4 of article 77 of the Labor Code of the Russian Federation).

The procedure and the need to comply with it

Step-by-step instructions on what exactly to do are necessary, since during the event an unpleasant entry is made to a negligent citizen in the work book “under the article” and often such actions are disputed in court.

Compliance with the rules of the process and office work will exclude the loss of the employer in it.

We will try to reveal the topic so that from this article it would be possible to make a brief memo to the personnel officer with the stages in order, with links to laws and with samples of all acts and other documents.

Step-by-step instruction

Let's list all the steps in order:

1. fixation of absence from the workplace;
2. you need to find out if there are any restrictions on dismissal at the request of the employer, and whether the person is a beneficiary;
3. determination of the terms of action according to the law;
4. a written proposal to the offender to give an explanation;
5. consideration of the circumstances of the violation;
6. checking for valid reasons;
7. an order () on dismissal is issued indicating its reason;
8. familiarization of the worker with the order;
9. calculation;
10. a mark in the work book and its duplication in a personal card;
11. making a copy of the work book for the archive;
12. issuance of the above document to the citizen personally;
13. confirmation of the fact of extradition (signature of a citizen in registration journals);
14. issuance of other documents.

How to start dismissal for absenteeism according to the Labor Code of the Russian Federation (Article 81), fixing a misconduct

Control of being at the workplace is carried out at any enterprise. This is done using timesheets.

Entering information about the absence in the time sheet is the fixation of this fact. But it is not enough just to make a record - it must be documented. For this, it is drawn up.

It is drawn up in an arbitrary form - the main thing is that at least 2 witnesses sign it (it is possible from among the staff).

The specified document is usually signed by an employee of the personnel service, persons responsible for labor discipline and registration of violations, the head, the staff who discovered such a circumstance. The more signatures, the better.

In addition to the act, reports are selected from immediate supervisors, employee memos.

Additional evidence is the methods of control at the enterprise, for example, logs of arrival / departure / absence. In these documents, the worker puts his signature personally when he arrives or leaves, and also writes down the reason when he needs to leave on business.

All collected evidence - acts, reports, etc. - are registered in the office or in the registers.

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Restrictions and benefits

In Art. 261 of the Labor Code of the Russian Federation lists the categories of beneficiaries, but most of them can be expelled for violations. The exception is pregnant women - they should not be touched under any circumstances.

Pregnant women can leave only at their own request or upon liquidation, termination of the IP, as well as due to some circumstances beyond the control of the parties.

It is impossible to dismiss at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation) during vacation or sick leave.

Timing

The date of vacating the post cannot be several years away from the moment of misconduct. Deadlines are defined in Art. 193 of the Labor Code of the Russian Federation. The employer has exactly 1 month. from the moment the violation is discovered, in order to carry out the procedure.

The specified time is extended if the citizen ran away on vacation, took sick leave or for the period necessary to respond to requests from trade unions or similar bodies.

If the detection did not happen immediately, then you need to check if the maximum limit for applying the penalty has been missed. In this case, it is 6 months. since this event. This time does not include the conduct of criminal proceedings, if any.

Obtaining a written explanation from the employee

The violator is sent to all known addresses by registered mail, or, if he is present at work, is awarded about what happened.

The document is prepared in 2 copies - the second is registered in the office of the enterprise and remains in the archive.

The offer is handed over to the employee in the presence of witnesses. On the second copy for the employer, he must put a mark of receipt and his signature. If he does not want to do this, an act is drawn up about this.

The answer is given according to the laws of 2 days. Once received, it is recorded in the same way as a warning and accepted for management review. If there is no answer or the employee refused to give it, then they wait a few more days, and then draw up an act of non-response and register it.

The lack of a response after that is not an obstacle to the procedure.

Consideration of circumstances

The following needs to be installed:

• the most important thing is whether there were good reasons for what happened;
• the severity of the consequences;
• if there were reasons, how good;
• characteristics of the management of the employee and his attitude to work.

Validation of Causes

Punishment is possible only if there were no valid circumstances for absenteeism, they must be presented and justified by the employee at the request (see above) of the employer.

In any case, the release of a vacancy for the reason in question is a right, not an obligation. Management may consider any such behavior acceptable and leave the citizen alone or confine themselves to reprimands and the like.

Just in case, all collected acts and documents should be kept in the employee’s personal file in order to be able to influence him in case of inappropriate behavior.

If, nevertheless, they considered that the reasons were not valid, then the procedure is continued.

Dismissal order

The order is prepared by the personnel department or personally by the head and signed by him. It is registered in a special journal or otherwise in accordance with the rules adopted by the organization. A copy must remain in the archive.

Familiarization with the order

The employee is given an order against signature, if he refuses to accept it and familiarize himself with it, then an act is drawn up about this (part 6 of article 193 of the Labor Code of the Russian Federation), and a mark is also put on the document itself (part 2 of article 84.1 of the Labor Code of the Russian Federation).

On the copy that remains at the company, the employee signs and the word "acquainted".

Calculation

On the day of dismissal, guaranteed regulations means: salary for actually worked time, compensation for vacation (Article 127 of the Labor Code of the Russian Federation). The basis of the event - a misdemeanor - does not affect them, the citizen must receive them in any case. This is the minimum required by law.

Payments such as severance pay and assistance in the amount of 1 monthly salary - in our case, it is paid at the discretion of the organization's management.

If labor or collective agreements provide for other payments, then the employee receives them.

If there is a dispute over the amounts, then the citizen receives the part that is not disputed (Article 140 of the Labor Code of the Russian Federation).

Funds are transferred on the last working date before leaving. If a person is absent, then the calculation is made after his personal appeal, but no later than the next day. If the settlement date is not working, then it is carried out the next day.

Registration and issuance of a work book, personal card

The rules for issuing a work book and a personal card are as follows:

Recording	Without any abbreviations, the number and date of the order are indicated in the corresponding column. The seal of the legal entity and the signature of the personnel service specialist with a transcript are placed under it.
T-2 card	The same entry, however, like everyone else, is duplicated in a personal card (T-2 form). Opposite each mark, the employee must put his signature. This should be checked before he leaves and forced to put his signatures where there are none.
Copy	A copy of the work book is made for the archive of the organization. This is necessary, as her data may be needed in case of checks and for similar situations.
extradition	On the last day of work. If a citizen is absent, then an act on this is drawn up. He is sent a notification with a proposal to come and pick up the book or agree to send it by mail. The notice is logged. If there is no answer, then the book is sent by mail (registered mail). If it has returned and the location of the citizen cannot be established, then it remains at the enterprise. If he showed up and applied in writing with a request for extradition, then this is done within 3 days.
Fixation	All actions are displayed in the movement accounting book work books and liners. Upon receipt, the employee must sign this in it.

Additional documents

The dismissed person, at his request, is issued certificates of the amount of earnings, 2-personal income tax and others with information relating to his work at the enterprise. This is the responsibility of the employer, and he has no right to refuse this.

It is important to carry out the process of dismissal for absenteeism, adhering to all its subtleties as much as possible. Otherwise, the chances of losing the court on the claim of the employee increase. It is advisable for a truant to make every effort to prevent conflict and agree on dismissal at will or by agreement of the parties.

You can be fired for absenteeism, or you can be fired for "repeated non-fulfillment of labor duties." What to choose? 08/07/2017

During the month, the employee repeatedly violated labor discipline: either he would go home long before the end of the working day, or he would be late. Yesterday he didn't show up for work at all. The director said to dismiss "under the article." Under what article should I fire an employee? For "repeated non-performance" is it suitable?

According to Part 1 of Art. 81 of the Labor Code of the Russian Federation “an employment contract may be terminated by the employer in the following cases:

5) repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction;

6) a single gross violation of labor duties by an employee:

a) absenteeism, that is, absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as in case of absence from the workplace without good reason for more than four hours in a row during the working day ( shifts);..."

The choice of grounds for dismissal is up to you. At the same time, keep in mind that the dismissal of an employee for repeated failure to fulfill his labor duties without good reason is possible only if the employee already has a disciplinary sanction. And with the development of the conflict, the GIT inspector or the court will definitely check the legality and correctness of the imposition of previous disciplinary sanctions. If all documents are executed flawlessly, then there is nothing to be afraid of. But as practice shows, the more papers are drawn up, the more likely it is to make a mistake. And the price may be the recognition of the dismissal as illegal and the reimbursement by the employer of a tidy sum in the form of payment for forced absenteeism, moral damage, etc.

If you choose dismissal for absenteeism as the basis for dismissal (clause "a", clause 6, part 1, article 81 of the Labor Code of the Russian Federation), then only documents for this misconduct will be closely considered. Past violations of labor discipline will clearly demonstrate the previous behavior of the employee and his attitude to work.

You can find step by step procedures on our website here

• Dismissal of an employee for repeated non-performance of labor duties (clause 5, part 1, article 81 of the Labor Code of the Russian Federation): a step-by-step procedure >>
• Dismissal for absenteeism (subclause "a", clause 6, part 1, article 81 of the Labor Code of the Russian Federation): step-by-step procedure >>

In conclusion, we give an example from practice.

Worker Sh.Yu.V. was dismissed for repeated gross violation of labor duties on the grounds provided for in clause 5 of part 1 of article 81 of the Labor Code of the Russian Federation in connection with the employee’s repeated failure to perform labor duties without good reason, if he has a disciplinary sanction. At the same time, in the order, the employer indicated that the plaintiff was absent from the workplace for 4 hours or more on April 13, 2017, absenteeism during the working day on April 14, 2017. The grounds for the dismissal were the report of the head of the section, the act of absence from the workplace, the explanatory note of the employee.

In the past, the employee also had absenteeism, but the employer did not indicate them in the order. The district court sided with the employer and recognized the dismissal as legal. But the court of appeal carefully examined the circumstances of the case and pointed out shortcomings in the procedure for formalizing the dismissal.

“... from the analysis of the order dated April 18, 2017 No. ... it follows that the plaintiff was dismissed from work under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, that is, for a disciplinary offense that he committed in the period from 04/13/2017 to 04/14/2017. Indication of committing other disciplinary offenses before the specified period, the order does not contain, that is, the application of disciplinary measures against him under this order for disciplinary violations on April 13 and 14, 2017 does not constitute a repeated failure by the employee to fulfill his labor duties without good reason and could not be the basis for an order to dismiss on this basis ... "

At the same time, the fact of truancy did not cause any complaints:

“...April 14, 2017 Sh.Yu.V. was absent from the workplace from 09:00 to 18:00, that is, full-time, which is correctly qualified by the employer as absenteeism, which is confirmed by the memorandum of the head of the water pumping station B. dated 04/14/2017, an act on the absence of Sh.Yu.V. at the workplace without a valid reason dated April 14, 2017. In addition, this fact is confirmed by the plaintiff's written explanation dated April 17, 2017 ... ”(Appeal ruling of the Supreme Court of the Republic of Sakha (Yakutia) dated July 31, 2017 No. 33 - 2846/2017).

As a result, the employee was reinstated, and the employer was charged with forced absenteeism.

It is likely that if the employer fired the employee precisely for absenteeism, then the dismissal would be recognized as legal.

Date of last revision: 08/16/2018

• Article "Hiring and firing in one day" ()

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