Procedure for dismissal for absenteeism
The length of absence from the workplace is essential for dismissing an employee for absenteeism.
The positions of the legislator and the judiciary are based on the following circumstances:
- Absence from the workplace during the entire working day (shift), regardless of its duration. This circumstance must be documented, that is, if necessary, a memo from the immediate supervisor is drawn up, and an absence from work report is drawn up, which is signed by several employees. If an employee is absent for several days, reports are drawn up every day of absence. These requirements are not mandatory, however, they will help the employer if the employee was absent on one of the days without good reason.
- Absence of an employee from the workplace for more than 4 hours in a row without good reason. The key is the employee’s absence from the workplace without good reason for the entire established period, without interruption. That is, recording 4 hours and 1 minute is sufficient for dismissal on this basis.
- Leaving the workplace until the expiration of the service period upon dismissal of one's own free will (2 weeks). An employee who intends to resign of his own free will may take a less responsible approach to fulfilling his job duties. Violation of labor discipline and the absence of an employee from the workplace during working hours will also allow the employer to fire him for absenteeism.
- Leaving the workplace before the expiration of an employment contract concluded for a certain period, or before the expiration of the warning period for early termination of the employment contract.
- Absence of an employee from the workplace due to unauthorized use of days off or vacation . According to the general rules, these days must be previously agreed upon with the employer (order, schedule, etc.). There are circumstances when such approval is not required. For example, those established by Article 186 of the Labor Code of the Russian Federation (for workers donating blood and its components).
Dismissal under an article for absenteeism always begins at the initiative of the employer by requesting a written explanation from the employee about the reasons for absence from the workplace.
The Labor Code does not establish the procedure for requesting such an explanation. The employer can confirm in writing his demand to the employee by drawing up an act requesting explanations from the employee about the reasons for absence from the workplace. This will save the employer from subsequently proving this fact.
Within 2 working days, the employee prepares a written explanation outlining the fact that the reasons for absence from work are valid.
If there are no valid reasons for an employee’s absence from the workplace, the employer has the right to subject him to disciplinary action, including by dismissal under the article for absenteeism.
The deadline for bringing to justice must also be taken into account, which is:
- one month from the date of discovery of the offense . This period does not include the period the employee is on sick leave or on vacation, as well as the time required for the employee’s representative body to make a decision.
- six months from the date of commission of the offense . And in the case of inspections of financial and economic activities, audits, audits - up to two years from the date of the offense. The specified period also does not include the time of criminal proceedings.
Consequences of such termination of employment
When an employee of an organization is fired for absenteeism, the most unpleasant thing is that an entry is made in his work book indicating:
- reason for dismissal - they write in plain text that there was absenteeism;
- basis - refer to the subparagraph and article of the Labor Code of the Russian Federation.
Thus, a new employer can easily find out that an applicant for an open vacancy is a violator of discipline. Not every business owner would risk hiring a absentee , because there is the following common belief: people don’t change. If a person has already violated labor discipline, then there is no guarantee that he will not do so in the future.
Advice: if the applicant’s work record says that he was fired for absenteeism, it is better to try to conduct your own check and understand in detail the true reasons for the dismissal.
The practice of labor relations in the Russian Federation is such that, often, dismissal for absenteeism is illegal, but has no consequences for the employer due to the low level of legal literacy of the employee.
Read more about what absenteeism is and whether you can be fired for it, and from this article you will learn about the procedure for dismissal for absence from work without a good reason.
Employer's liability
If the termination of the employment contract was carried out legally, then the consequences can only be positive: the company gets rid of a careless employee who could have failed at any time and, in fact, failed. If dismissal for absenteeism was illegal, then the consequences may be different, but in both cases unpleasant:
- The employee has the right to be reinstated in his position based on a court decision. In this case, the employer will be obliged to pay compensation for forced absence and, depending on the requirements of the dismissed employee, some other money.
- An employer can be attracted under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation for violation of legislation in the labor sphere. Finally, in some cases, criminal liability may apply. So, for example, if you fire a pregnant woman for absenteeism, then it is quite possible to become convicted under Art. 145 of the Criminal Code of the Russian Federation.
Thus, when dismissing a truant worker, the employer must be sure that he is doing absolutely legally . And to achieve such confidence it is necessary:
- so that the employee’s absence report is drawn up correctly and contains evidence that absenteeism occurred;
- so that the entire package of documents drawn up in the case in question is prepared;
- that there is no evidence of a valid reason for the employee’s absence from the workplace;
- so that the employee does not fall into the category of persons who cannot be fired for absenteeism or leaving the workplace during his shift.
Order of dismissal for absenteeism
Drawing up an additional order to impose a disciplinary sanction is not required. It is enough to prepare a dismissal order using the unified form T-8, approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1. (Download sample in doc format).
After the dismissal order is issued, it is necessary to familiarize the employee with it against his signature within 3 working days .
If the employee refuses to familiarize himself with the order , the employer must make a note about this on the order itself, and it is also recommended to draw up a corresponding act in the presence and signature of uninterested employees of the organization.
Let's challenge the order of dismissal for absenteeism. Lawyers of St. Petersburg. Tel.+7 (812) 989-47-47 Telephone consultation
Time away from work
The law gives an employer the right to dismiss an employee for absenteeism if the employee has been absent for 4 hours or more. This means that if an absence of exactly 4 hours or less is recorded, then you cannot be fired for absenteeism. Yes, other disciplinary measures can be taken, such as a reprimand, but not dismissal. Having information on how to fire a person for absenteeism, employees sometimes take advantage of this four-hour period, which does not allow absence to be considered absenteeism.
How is time away from work calculated correctly?
Further, the period of absence does not include the lunch break. Reason – art. 108 of the Labor Code of the Russian Federation, which excludes the duration of the break from working time. Therefore, if, for example, an employee came to work at 14:20, but was supposed to at 10:00, while the break was set from 13:00 to 14:00, then this act will not be considered absenteeism, since the employee was absent only 3 hours 20 minutes.
The Labor Code of the Russian Federation allows you to take into account and summarize all periods when the employee was not on site, but only within one shift or day, depending on the established schedule. That is, periods of absence cannot be summed up over several days or shifts.
It would be acceptable to consider, for example, absenteeism if the employee was not present:
- 1 hour in the morning;
- 1 hour 10 minutes after lunch;
- 2 hours at the end of the shift.
In total, 4 hours and 10 minutes will be missed for the whole day. This can be qualified as truancy, subject to other procedural requirements.
Dismissal for absenteeism, entry into the work sample
The entry in the work book must be made in strict accordance with the wording of the dismissal.
On the last day of work, the completed work book must be given to the employee. If an employee refuses to receive a work book or was absent from the workplace on that day, the employer is obliged to keep it. In this case, the employer must send a written notice to the dismissed employee about the need to appear for a work book, or to give written permission to send it by mail. If these conditions are met, the employer will be released from the obligation to pay compensation to the employee for the delay in issuing the work book.
Is it possible to get a job if you were fired under an article?
Termination of an employment relationship due to absenteeism is unpleasant not only because the dismissed person remains without work, but also due to problems arising with further employment. How to get a job if you were fired for absenteeism?
The only solution to the problem is to convince the new potential employer that this was an accident and is not the employee’s normal behavior.
To support your words with evidence, you can use the following:
- positive characteristics and recommendations from previous places of work;
- probationary period during which the employee can prove himself.
It all depends on the case, the availability of recommendations and other factors.
Expert opinion
Irina Vasilyeva
Civil law expert
After dismissal under an article, it is possible to get a job, but having an entry in the work book significantly complicates the task.
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Calculation upon dismissal for absenteeism
Labor legislation establishes general requirements for termination of employment relations at the initiative of the employer for absenteeism.
On the last working day, the employee must be paid all amounts due. The payment must also include existing wage arrears, including compensation for unused vacation.
Delays in payment of wages may lead to the employee filing a claim for compensation for delayed payments, as well as moral damages and legal costs.
Who cannot be fired for absenteeism under the article
There is no list of valid reasons, that is, this issue is decided by the head of the organization. However, there are a number of situations that are considered respectful by default, and they can be documented.
Important! Cases when an employee cannot be accused of absenteeism and dismissed:
- a disease that is confirmed by a certificate of incapacity for work;
- short-term disability;
- blood and plasma donation;
- participation in a rally;
- the occurrence of force majeure, for example, fire or accidents;
- performance of public functions assigned by relevant government bodies;
- presence in court, internal affairs bodies, military registration and enlistment office;
- when payment of wages is delayed for more than fifteen days. In order not to work legally, you should warn management in writing;
- detention by law enforcement agencies;
- weather or natural disaster.
After receiving the relevant documents, the employer must check their authenticity to establish the veracity of the basis for absenteeism. If the document turns out to be forged, the manager has the right to immediately terminate the employment relationship with the negligent employee. The reasons for absenteeism must be valid.
You should know! It is not allowed to fire:
- pregnant women (Article 261 of the Labor Code);
- minors - without the consent of the labor inspectorate and the commission for minors (Article 269);
- employees during illness or vacation period (Article 81 of the Labor Code of the Russian Federation).
Unlawful dismissal for absenteeism
There are many examples in judicial practice when a decision to dismiss an employee for absenteeism is considered illegal.
The key points in this matter are the following:
- absence of an employee from the workplace without good reason;
- the severity and circumstances of the offense committed;
- compliance with the dismissal procedure.
The court , when making a decision to recognize the dismissal as illegal, takes into account all the circumstances of the case , gives them a proper assessment, and takes into account the practice of higher courts.
Let's try to analyze the main reasons for making such decisions :
- There is no written explanation from the employee and the employer does not have evidence of their proper demand within the established time frame.
- If a specific place of work is not assigned to an employee, but the latter was located on the employer’s premises, then dismissal for absenteeism may be considered illegal. An employee’s workplace is usually specified in an employment contract, indicating a specific location (office, office).
- Continuous absence from work for more than 4 hours in a row. The key is the time period. If there were less than 4 hours left before the end of working hours and the employee left without a good reason, then this offense should not be followed by dismissal for absenteeism, but by another disciplinary sanction.
- The employee was absent for a long time and the employer issued an order to terminate the employment relationship under paragraphs. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation. However, it later turned out that the employee was on sick leave or absent for other valid reasons. In this case, it is more advisable to cancel the order. It is possible to terminate an employment relationship with an employee due to incapacity only upon the employee’s personal application.
- The employer artificially restricts the employee’s access to the workplace (blocks the electronic pass, changes the lock code, etc.). A competent employee will record such circumstances (telegram, act, etc.) and without much difficulty will be restored by a court decision.
The examples given are not a complete list of circumstances under which the courts cancel an illegal order to dismiss an employee for absenteeism. Almost every business has individual characteristics.
Labor dispute lawyer. Challenge the dismissal. Tel.+7 (812) 989-47-47 Telephone consultation
How to avoid consequences
How to avoid dismissal for absenteeism is quite clear. It is enough to comply with the working hours specified in the employment contract. Unfortunately, sometimes people make mistakes . And besides, unscrupulous employers can fire people even when they have valid reasons for being absent from the office.
Of course, some short-sighted citizens do not think for long about what to do with their labor rights if they were fired under an article for absenteeism. They simply throw away the document and declare it lost. This solution to the problem is not successful, since security officers can easily find out the reason for dismissal from their previous job.
When applying for a new job, you don’t need to immediately talk about the fact of dismissal for absenteeism, but you shouldn’t intentionally hide it either. It is better to get a less prestigious position than to wait for good offers for several years. And after a year of working in a new place, you can again look for a good position.
Some employees who know that they have two days to explain the reasons. And if there are no valid reasons for absence, they write a letter of resignation of their own free will. Only very principled employers conduct further investigations into the reasons for absenteeism. Usually, managers simply sign the statement and fire the person “on good terms.”
Statement of claim for illegal dismissal for absenteeism
The form for drawing up a statement of claim for illegal dismissal must comply with the requirements of Articles 131, 132 of the Code of Civil Procedure of the Russian Federation. It must contain the following information:
- the name of the district court and its location;
- information about the plaintiff, defendant (full name, place of registration, telephone);
- subject of the dispute (circumstances of dismissal and the appealed decision of the employer),
- grounds for canceling the decision (violation of labor legislation upon dismissal);
- procedural requirement (recognizing the dismissal order as illegal, reinstatement at work, or changing the wording to dismissal at will, recovery of wages for forced absence, recovery of moral damages and legal costs)
- a list of documents that are attached to the statement of claim (copies of the disputed documents, evidence in the case, information about sending a copy of the claim with an attachment to the defendant).
- the statement of claim must contain the date of preparation and the signature of the plaintiff.
In order to correctly determine which district court to file the claim, you need to know the current legal address of the employer. The district court having jurisdiction over this address will hear the dispute.
There is also an alternative to filing a claim in court at the plaintiff’s place of residence (registration by passport) or executing an employment contract. In this case, it is necessary to submit an employment contract to the court, which contains a note about the location of the workplace (city, street, house number).
Estimated payments
Upon dismissal due to absenteeism, an employee may qualify for payment of the following financial resources in the general manner:
- calculation for fully worked days;
- financial compensation for unused vacation days;
- compensation for time spent on sick leave (if the employee was sick and had sick leave before the fact of dismissal).
When dismissed for absenteeism, an employee has the right to claim compensation for travel and other expenses that he incurred before the publication of the dismissal order. To avoid delays, the employee should take care to provide documentation that will confirm the expenses.
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Unlawful dismissal statute of limitations
A claim for illegal dismissal must be prepared and filed (sent) to the district court within one month from the date the employee receives the dismissal order or receives the work book. The specified period is not preemptive and does not deprive the plaintiff of the right to file a claim in court to challenge illegal dismissal. The court will schedule the case for hearing and will consider it until a procedural decision is made.
But in this case, the defendant will have the right to file a motion to enforce the plaintiff’s missed deadline for filing a lawsuit to resolve a labor dispute related to illegal dismissal.
In response to this, the plaintiff, if there are good reasons, must prepare a petition to restore the missed deadline for filing a lawsuit. Such reasons may be: the employee is undergoing hospital treatment, caring for a sick family member, being on a business trip, etc. The list of valid reasons is not established and is assessed by the court individually.
Labor disputes are very common in the practice of our center’s lawyers. Almost every day people contact us whose labor rights have been violated. Many of our lawyers specialize in this area of rights protection; accordingly, they have very impressive experience in both the pre-trial settlement of labor disputes and the successful management of cases of this category in courts of all instances.
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