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Truancy - what is it?
Often the concept of “truancy” has completely different interpretations. Among employees, the most common interpretation of this concept is absence from work without a good reason and notification of the employer.
But how employers understand this concept directly depends on the degree of their conscientiousness.
The lower the employer’s integrity, the broader the interpretation of the concept of “absenteeism.” It comes to the point that in some cases, absenteeism begins to be understood as simple lateness or an employee’s refusal to go to work overtime or on weekends and holidays.
A clear definition of the concept of “truancy” is given in subparagraph “a” of paragraph 6 of part 1 of Article 81 of the Labor Code of the Russian Federation.
Attention! Based on the norms of current legislation, an employer can accuse an employee of absenteeism if:
- the employee was absent from the workplace for more than 4 hours in a row;
- absence from work was not due to a valid reason;
- no more than a month has passed since the commission of this offense.
An employer who intends to fire an employee for absenteeism will need to prove that this employee was absent from the workplace for more than 4 hours without a valid reason.
What the Labor Code says
The legislative framework gives the employer the right to dismiss an employee due to absenteeism. This is stated in Article 81 of the Labor Code. It is pointless to dispute this fact, but it is important to distinguish between the concepts of absenteeism and tardiness. A situation often arises when company management wants to get rid of an unwanted employee in order not to pay compensation. In such cases, various tricks and the creation of unfavorable working conditions are possible. In such circumstances, the employee needs to carefully read the employment contract and follow the main points.
The opposite situation is also possible, in which the employee knows his rights very well, but forgets about his responsibilities. Repeated verbal warnings about systematic delays are ignored. It will not be possible to issue written warnings retroactively, so management should record violations of the routine in order to be able to rely on them in the event of litigation. After all, the director can fire an employee for absenteeism for one day.
What to do if an employee does not come to work and does not warn
The current legislation of the Russian Federation protects the interests of citizens and does not allow employers to fire an employee due to simple absence from work.
Despite the fact that absenteeism committed by an employee is a sufficient reason for dismissal, the employer will need to prove the very fact of committing this disciplinary violation, and in addition, follow the procedure for recording absenteeism, properly documenting everything.
Before dismissing an employee for absence from work, the employer must obtain an explanation of the reasons for this absence. If a citizen was fired for absenteeism, and the employer did not take an explanation from this citizen, then he may well go to court and demand reinstatement at work, since the dismissal procedure was violated.
An analysis of practice shows that in such situations, the courts take the side of citizens, obliging employers not only to reinstate these citizens at work, but also to pay compensation for the time of forced downtime.
What should an employer do when an employee does not show up for work? First of all, it is necessary to try by all available means to establish contact with the disappeared citizen and find out what caused the absence from work. This can be done through calls or personal visits.
You can also send a formal request on the employer's letterhead using registered mail with return receipt requested.
During an employee’s absence from the workplace, a code should be entered in the time sheet indicating the employee’s absence for unknown reasons. In this case, no wages are accrued.
In addition, the employer can hire a new one to temporarily replace a missing employee by formalizing the employment relationship with a fixed-term employment contract.
Important! It should be noted that dismissing an employee for absenteeism is a right, not an obligation, of the employer. In addition, the current legislation of the Russian Federation does not oblige the employer to search for a missing employee.
Dismissal of an employee for absenteeism.
Who can be laid off at work first of all according to the law, read here.
Under what circumstances is it possible to deprive an employee of an employee’s bonus, read the link:
Walk with respect
Local courts sided with the employer. And the offended plaintiff found the strength to reach the Supreme Court. There they examined the case and stated that if an employee did not come to work for a good reason and even took measures to ensure the work process in his absence, then such an employee cannot be fired. The Supreme Court outlined an important principle for such circumstances: firing a person is a last resort. And even if the employee did not return to work for an unexcused reason, before dismissal you need to look at his behavior and attitude towards work.
This story began with the fact that a woman did not show up for work. The reason: her nephew had to be urgently taken to the emergency room - the child broke his nose during training in the sports section. The only way to warn the authorities at that moment was an SMS message. Before this, the citizen called her colleague and asked to replace her.
The next day, she brought medical documents to her boss to confirm the reason for her absence from work. But it did not help. Her employment contract was terminated for absenteeism. And the citizen went to court.
The case was heard in the Babushkinsky Court of Moscow, which sided with the employer. Later, the Moscow City Court agreed with this position.
RG experts discuss the legal aspects of labor relations in the “Legal Consultation” section
According to the district court, the dismissed woman did not provide legal evidence that it was she who should have taken her nephew to the doctor. And the court also said that the citizen did not have permission from her superiors to miss work. And the fact that she asked a colleague to replace her at the workplace does not mean anything. The court concluded that the plaintiff committed absenteeism without good reason and without permission from her superiors.
The Supreme Court did not agree with such statements. And he began his arguments with the Labor Code, which allows an employer to fire an employee for absenteeism without good reason. Moreover, this is considered a serious violation. But when punishing a truant, the Supreme Court emphasized, one must take into account the severity of the offense committed and the circumstances under which it was committed. This is written in Article 192 of the Labor Code of the Russian Federation.
In our case, in the opinion of the high court, local courts, when checking the legality of the employer’s actions, should have proceeded from the general principles of legal, and therefore disciplinary liability. In particular, such as justice, proportionality, legality.
The courts must evaluate all the circumstances of such a case, including the reasons for the employee’s absence from work. The Constitutional Court mentioned these important points three times in its rulings. (No. 75-O-O dated February 19, 2009, No. 1793-O dated September 24, 2012, No. 1288-O dated June 24, 2014, No. 1243-O dated June 23, 2015).
And there is one more serious point that the high court drew attention to. The obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer. This was stated in the resolution of the Plenum of the Supreme Court dated March 17, 2004 No. 2.
This resolution emphasizes that it is the employer who is obliged to provide evidence indicating that the employee has committed one of the gross violations of labor legislation.
“It is mandatory for the correct resolution of a dispute to establish the circumstances and reasons (whether valid or not) for the employee’s absence from the workplace,” the Supreme Court reminds.
According to the Supreme Court, the district court “erroneously believed that what matters primarily is whether or not the employee received the consent of her manager to miss her shift.”
Such a conclusion was made in violation of procedural law and contradicts the case materials, the Supreme Court believes. Judging by the case materials, the plaintiff explained to the employer, as well as in court hearings, that there were valid reasons for absence from work - due to the need to be with her nephew in the hospital.
The woman said that she lives with her sister and her son. And that they are one family, running a common household together. Therefore, she takes a direct part in the life and upbringing of her nephew. This includes taking him to school and sports clubs.
On that fateful day, the boy's mother was in the hospital visiting their mother, who had just suffered a stroke. And the nephew was playing hockey in the yard, during the match he suffered a broken nose, and the woman took him to the emergency room, from where the child was hospitalized. Naturally, the aunt went to the hospital with the child.
At this time, she sent an SMS message to her boss saying that she would not be able to go to work, but they would replace her. According to the plaintiff, this method of notification was their established practice.
The plaintiff’s replacement, who replaced her on the day of absenteeism, also spoke in court. She told the court that she warned the deputy manager that she would work the shift for her. She was unable to reach her immediate superior by phone. We have a routine at work: call your boss and explain the situation, the witness said.
Despite this, the district court in its decision rejected the plaintiff’s arguments without giving reasons why he did this. And he justified his conclusion about the absence of valid reasons for not showing up for work as follows: the plaintiff did not provide the court with evidence of the manager’s consent to her absence from work.
The courts formally approached the case related to violation of labor rights, which is unacceptable
Based on this, the Supreme Court concluded: the position of the district court does not correspond to legal norms. The Supreme Court indicated that the district colleagues had to question the deputy chief, whom the shift worker had notified about the plaintiff’s absence from work. And the city court did not correct this error of the district court.
The Supreme Court saw other serious shortcomings in the appeal decision. Thus, the content of the appeal ruling does not correspond to the case materials. It records that the prosecutor gave an opinion on the legality and validity of the decision of the court of first instance, while from the record of the court session it follows that the prosecutor gave an opinion on the illegality and groundlessness of the plaintiff’s dismissal from work and the existence of grounds for satisfying the claims.
Local courts, the Supreme Court emphasized, ignored the fact that the defendant did not provide any evidence that when making a decision on dismissal, he took into account the severity of the disciplinary offense and the circumstances in which it was committed, as well as the fact that the defendant took into account the employee’s previous behavior and her attitude to work. The courts of first and appellate instances did not examine the possibility of the defendant applying another, less severe type of disciplinary sanction.
Under such circumstances, the courts' conclusions that the employer had grounds for dismissal for absenteeism are unlawful. The courts did not determine the circumstances relevant to the case and which party should prove them, did not establish these circumstances, and did not collectively evaluate the evidence available in the case. The courts formally approached the consideration of this case related to violation of labor rights, which is unacceptable when resolving a dispute of this category, the Supreme Court emphasized.
He overturned the decision of the district and city courts and returned the case for a new trial.
What bonuses are awarded for overtime work:
Valid reasons for absence
This year, neither the Labor Code of the Russian Federation nor other legal acts provide a description of the reasons that are valid for absenteeism. In each specific case, the reasons that prompted the citizen to commit absenteeism, as well as the degree to which these reasons are valid, are examined and analyzed separately.
An analysis of current practice shows that reasons that arose independently of the will of the citizen are understood as valid.
The following are considered valid reasons:
- illness of the citizen himself;
- illness or death of a close relative;
- an emergency situation in which a citizen became a participant;
- a citizen getting into a traffic accident;
- other reasons independent of the citizen’s will that prevented him from going to work.
How to record absenteeism and punish for it
First of all, we emphasize that absenteeism is a gross violation of labor discipline. That is why, even for a one-time commission of this offense, the employer has the right to dismiss the employee.
This is the main difference between absenteeism and less serious violations of labor discipline, for example, being late.
It should be noted that for absenteeism, the employer has the right to both dismiss an employee and apply other disciplinary sanctions provided for in Article 192 of the Labor Code of the Russian Federation.
Please note! Whatever disciplinary liability the employer chooses for the employee who committed absenteeism, the following will be required:
- properly record the fact that the employee is absent from the workplace for more than 4 hours;
- establish the reason for this absence by obtaining an explanation from the employee.
Recording absence from work
You can record the fact that an employee is absent from the workplace using:
- information from an automated access system, provided that the employer has established an access regime and uses this system;
- a memorandum drawn up by the immediate superior of this employee;
- an act drawn up upon the absence of an employee from the workplace. This act can be drawn up by both the employer’s personnel service employees and the immediate supervisor of the absent employee. When drawing up the act, it is necessary to ensure the presence of 2 witnesses.
ATTENTION! Look at the completed sample of the employee’s absence from work report:
Reason for dismissal
Even when firing the most irresponsible employees, the employer should show maximum attention to detail. It is important to comply with all legal requirements, otherwise the employee will appeal the decision in court.
The employer has the right to begin the dismissal process in one of the following situations:
- absence from work all day (time of day does not matter);
- the employee did not appear at the workplace for 4 or more hours, there is no valid reason: if the work shift is less than 4 hours, then the manager also has the right to dismiss the offender;
- if an employee wanted to terminate the employment contract before its expiration date, but did not notify the immediate supervisor in writing and left the workplace;
- if a person stops coming to the workplace after submitting a resignation letter, but does not work the 14 days required by law, the employer has the right to dismiss him under the article;
- unauthorized time off or vacation.
In practice, the situations listed above are rare in their pure form, because employees try to hold on to their jobs and clearly understand that dismissal under an article will create many difficulties when finding employment in a new place.
How to establish the reason for absence
The employee did not show up for work. How should an employer proceed? Based on the norms enshrined in the current legislation of the Russian Federation, the absence of an employee from the workplace without a valid reason for more than 4 hours during a shift or working day is recognized as absenteeism. And the absence of a valid reason in this case is the defining moment.
Note that the employer can learn about the presence or absence of a valid reason either from the employee himself or from the relevant authorities.
Employer's procedure
Before dismissing an employee if he does not show up for work, it is necessary to establish the reason for the person's absence. Only after all the circumstances have been clarified can the employer decide whether it is possible to terminate the employment contract.
Search for an employee
The absence of an employee from the workplace can be due to a number of reasons, such as urgent hospitalization, detention by law enforcement agencies and many others. In this situation, the manager should take the following actions:
- make an attempt to call the subordinate using the phone number indicated in the personal card or, if possible, contact his relatives;
- if he does not pick up the phone, send a letter (preferably registered with a notification) to the employee’s address asking him to explain the reason for his absence; if he does not receive a response, a report with the appropriate content should be drawn up;
- to ask the police about a missing person, not only his relatives, but also colleagues can write a statement to the police department, on the basis of this search work will begin;
- if after a year or a longer period the search by the police has not brought results, you can, as an interested party, go to court to have the missing employee declared missing.
If an employee disappears and does not come to work, it will be impossible to fire him until the reason for his absence from work is established. The legal process will usually take a lot of time. But, after waiting for it to end, the employer can formalize the dismissal, relying on clause 6, part 1 of Art. 83 Labor Code of the Russian Federation.
If the employee has close relatives, they are the ones who take the measures necessary to search for the missing person and obtain documents confirming the fact of the loss. The organization carries out the dismissal process based on the documents they submit. If the disappeared citizen does not have relatives or they do not contact the official authorities for some reason, then the necessary procedures are carried out by the company itself.
After filing a complaint with the police, the employer must have a tear-off coupon from the KUSP, indicating that they have contacted the official structure. The employer must retain this document and a copy of the application addressed to the police with a mark of receipt for subsequent procedures.
Documenting
Having collected the entire necessary set of documents certifying that there were no deviations from the requirements of Article 193 of the Labor Code of the Russian Federation: a request for an explanation was sent to the employee, reports of its non-receipt were drawn up, there are acts confirming the person’s absence from the workplace, and also making sure that this prolonged absence is not has objective reasons, the employer has the right to terminate the employment contract.
A unified algorithm for processing the termination of an employment contract is specified in Article 84.1 of the Labor Code of the Russian Federation, which talks about familiarizing the employee with the order to terminate the employment contract under his personal signature. In the absence of the opportunity to bring this document to the attention of the employee or in the event of his refusal to familiarize himself with it under his signature, a corresponding entry is made in the order (instruction). The main documents when dismissing a missing employee consist of:
- an order in which the column for familiarizing the employee with it remains blank, and a reference to the court ruling is entered in the “Bases” column;
- work book of the dismissed employee with a record of the reason for termination of the employment contract.
According to Article 84.1 of the Labor Code of the Russian Federation, the work book is subject to mandatory issuance, but since it is impossible to hand it over to the missing employee, it is handed over to one of the relatives against a signature or sent to him by mail based on his application. If it is impossible to transfer this document to relatives, then it remains in the organization until required, its storage period must be at least 75 years.
In addition to completing personnel documentation, the employer is obliged to make a full settlement with the dismissed employee, whose absence does not exempt the organization from paying wages and certain compensations. In this case, the funds to be paid are transferred to a deposit and then given to the family members of the missing person.
Recording absenteeism in the time sheet
In a situation where an employee does not show up for work, the employee responsible for maintaining time sheets is faced with the task of correctly recording the fact of absence.
In most cases, employers take into account the time actually worked by employees using the working time sheet, Form No. T-12. It is worth noting that this form is not mandatory. The employer can independently develop and use a time sheet and use it.
Often, employees responsible for maintaining time sheets doubt how to properly record an employee’s absence from the workplace. As noted above, before establishing the reasons for the absence of employees, it is necessary to use the code “NN” or another code established by the employer to record the fact of absence by an employee for unknown reasons.
Attention! If it subsequently turns out that the reason for the employee’s absence was illness, and this employee provided sick leave, then the “NN” code in the report card is replaced with the “B” code, indicating the employee’s absence due to illness.
If it is determined that the employee was absent without a good reason, the “NN” code in the report card is replaced with the “PR” code, indicating the employee’s absence from the workplace without a good reason, that is, absenteeism.
After establishing the reasons why the employee was absent from the workplace, or after drawing up an act of refusal to give explanations, days about:
- are counted as absenteeism and are not subject to payment;
- are paid in accordance with the reasons for the absence.
Reprimand as a punishment for absenteeism
In essence, a reprimand is not much different from a reprimand, but this measure is still more serious. For example, some enterprises introduce a system of punishment for employees in which the presence of several reprimands is grounds for subsequent dismissal.
A reprimand is a negative assessment of an employee’s actions by the employer, expressed by the latter in official form. Like a reprimand, a reprimand is not noted in the work record book, but can be displayed on the employee’s personal card.
The procedure for issuing a reprimand is similar to applying a reprimand and includes the following actions:
- Preparation of documents confirming the employee’s guilt (absenteeism report and memo).
- Receiving a written explanation from the employee (in case of refusal to provide an explanation, a report is also drawn up).
- The employer's decision regarding the employee's guilt. For example, if the reason for absenteeism was valid (a summons to court, an accident, illness) and the employee is able to confirm this, punishment may not be applied.
- Issuing an order to reprimand the employee. Within three working days he must be familiarized with it against his signature.
The terms for imposing a reprimand are the same as for a reprimand - six months and a month from the date of commission and discovery of the offense, respectively.
After the end of the year, the reprimand is also removed from the employee, unless during this time he has committed new disciplinary offenses.
What is needed to calculate the time of absence of an employee
It should be noted that, based on the norms of Article 108 of the Labor Code of the Russian Federation, the lunch break is excluded from working hours. Thus, it is unacceptable to classify the lunch break as the time an employee is absent from the workplace.
Let's look at a specific example. In the organization, the working day begins at 09-00. The lunch break is set from 12-00 to 13-00. The employee arrived at the workplace at 13:30.
Thus, he was absent from work for 3 hours and 30 minutes, which is not enough to qualify this act as absenteeism.
Although the Labor Code of the Russian Federation directly states that in order to register absenteeism, an employee must be absent from the workplace for more than 4 hours in a row, in practice it is possible to sum up the time of absence, but only for one working day.
Let's look at another example.
The employee was absent from work:
- 50 minutes in the morning;
- 1 hour 30 minutes after the end of the lunch break;
- 1 hour 45 minutes at the end of the working day.
Thus, the employee was absent from the workplace for 4 hours and 5 minutes during one working day, which in practice, subject to other conditions, is sufficient to record the fact of absenteeism.
Watch the video. What to do if an employee does not show up and does not answer calls:
How to register absenteeism without dismissal
It’s good when the manager decides to leave the employee, but formalizes absenteeism without dismissal in accordance with all established rules.
Let's consider the registration procedure:
- Drawing up an act.
It is mandatory to draw up an act in which all the personal data of the employee who has violated the terms of the contract is written down. In addition, information about the employer and two witnesses is provided.
All persons who will appear in the act must sign it - this is important. Afterwards, it is described in detail when and how long the subordinate was absent from the workplace of his own free will. Well, the act must be completed by making a decision - what the employee receives for his negligence.
- Memorandum.
This is the second mandatory document, which also indicates the reason for the violation and the timing of unauthorized absence. An act is attached to the note and handed over to the head of the company.
- Order.
Only when an authorized employee receives all the documents does he prepare an order. The manager is the first to sign and study the order, after which he is brought to the notice of the violator of the employment contract.
According to the law, 3 days are allotted for preparation of the order and familiarization. If the employee does not agree with the decision and refuses to sign, a report is drawn up. An act is prepared in the presence of witnesses, which records that the worker refused to sign the document.
How long does it take to issue a collection order?
An employee who commits absenteeism may be subject to disciplinary action in accordance with Article 193 of the Labor Code of the Russian Federation.
Based on the norms enshrined in the above article, you can punish an employee:
- within a month from the date of discovery of the disciplinary offense. This time period does not include the time the employee is on sick leave or vacation;
- within 6 months from the moment the disciplinary offense was committed.
Many employers fear that if an employee is absent for a long period of time, the statute of limitations for bringing disciplinary action may expire. These fears are unfounded.
Registration of dismissal
Based on the norms enshrined in subparagraph “a” of paragraph 6 of part 1 of Article 81 of the Labor Code of the Russian Federation, absenteeism committed by an employee is sufficient grounds for the dismissal of this employee and termination of the employment contract. But this does not mean that when absenteeism is recorded, the employer is obliged to fire the offending employee.
It is worth noting that in accordance with Part 5 of Article 192 of the Labor Code of the Russian Federation, when choosing a disciplinary sanction, the employer is obliged to take into account not only the severity of the offense committed by the employee, but also the circumstances under which this offense was committed.
We especially note that regardless of what disciplinary sanction the employer decides to apply, it is necessary to fully comply with the standards established in Article 193 of the Labor Code of the Russian Federation.
ATTENTION! Look at the completed sample order of dismissal for absenteeism:
Documenting
If the employee’s absenteeism is officially proven, all that remains is to correctly issue the order. As already said, only the employer decides what punishment can be applied.
An employee may be involved:
Disciplinary action
If a decision is made to apply this penalty to the violator of the employment contract, an order is drawn up. You can take the familiar T-6 shape as a basis, since there is no single template. Each personnel officer can draw up a document based on the internal regulations of his enterprise.
- order of disciplinary action
- order of disciplinary action due to absenteeism
The most important thing that should be indicated in the document is how many hours the subordinate did not perform his duties due to absenteeism. There must also be a date of absence from work. Well, in conclusion, indicate what punishment is established: simply a reprimand or deprivation of a bonus payment.
Dismissal
This is the most serious punishment that all employees fear. But if the decision is made, then all that remains is to correctly draw up all the documentation. In this case, you need to prepare 2 orders. In the first case, this is a disciplinary sanction, which has already been discussed, and the second is the termination of labor duties at the initiative of the employer (dismissal order).
The order is communicated to the employee in writing. After signing, all documentation is placed in a personal file.
Do not forget that when hiring a subordinate, each boss must clearly explain what punishment is applied for violating the employment contract.
