Dismissal for being late in 2021

Dismissal for being late for work is quite possible under the Labor Code of the Russian Federation.

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USEFUL: dismissing an employee without working for 2 weeks as a way to resolve conflict at work

Is it possible to fire an employee who is constantly late for work?

Definition of lateness according to the Labor Code of the Russian Federation

Lateness is a disciplinary offense by an employee, which involves the absence of a person from his workplace without a valid reason for no more than four hours.

That is, the duration of delay can be determined by the period of absence of the employee at his place of work from one minute to four hours. If this duration is exceeded by the employee, then we will be talking about a serious labor offense - absenteeism.

In enterprises, delays are the most common occurrence. Sometimes they can happen for good reasons. In some companies, small delays (for example, five minutes) may be viewed condescendingly by the administration.

Attention! But if delays are systematic and last a considerable time, their result may be a disruption of the production process in the organization, so management begins to take appropriate measures.

Differences between being late and absenteeism

Both tardiness and absenteeism represent the absence of an employee from his workplace.

However, there is a difference between them:

The duration of delay cannot be more than 4 hours, and absence of an employee for more than 4 hours is considered absenteeism.
Lateness is considered a minor disciplinary offense, and absenteeism is considered a serious one.
For being late, disciplinary action is imposed in the form of a warning and reprimand, and dismissal at the initiative of the employer is possible only when lateness is repeated (more than twice). If an employee skips work, he can be fired immediately for absenteeism.
Lateness is rarely recorded on the report card. Absenteeism must be reflected in the time sheet using a special code.

What does the law say about dismissal for absenteeism?

An employer, in accordance with the labor code, can hold an employee accountable in the form of dismissal for absenteeism. A serious offense, which includes absenteeism, gives the company administration the right, if necessary, to take appropriate disciplinary measures.

However, the law requires mandatory compliance with the established procedure with the correct execution of all necessary documents.

Common mistakes made by employers

An employee may consider his dismissal to be unlawful and seek protection in court. If the employer has fully complied with the requirements of the law, it will not be possible to challenge his decision. However, the court will side with the employee and recognize dismissal for systematic tardiness as unlawful if it turns out that the employer:

did not properly document previous penalties;
fired for absenteeism, summing up the time of lateness;
did not take into account the duration of previous penalties;
fired for being late for a valid reason.

Read about how much notice you must give about a layoff here.

The consequence of violations committed by the employer will be the reinstatement of the unfairly dismissed employee, as well as payment for his forced absence.

Ask questions in the comments to the article and get an expert answer

Reasons for being late: valid and disrespectful

Employees may not arrive at work on time for a variety of reasons.

They are usually divided into respectful and disrespectful.

If the employee has a valid reason for being late. Disciplinary measures cannot be taken against him. These reasons include:

Poor health of a company employee.
Illness of a close relative, child.
Death of a close relative.
Employee participation in an accident.
Disruptions to public transport.
Natural disaster or declaration of a state of emergency.
An accident involving an employee resulting in injury.
Execution of state or public duty.
And other.

Good reasons require the presence of supporting documents. All other reasons are considered disrespectful, so disciplinary measures may be taken against the employee for them.

Important! The list of unexcusable reasons for being late is not legally defined. The employer independently determines whether the employee’s reason for being late is valid. To find out the reason for being late, you need to ask the employee for an explanation.

The difference between being late and absenteeism

The law establishes that absenteeism is the absence of an employee from the workplace for more than four hours during one shift. Lateness is considered to be a short period during which a person was absent, for example, 5, 10 or 15 minutes.

It is very important to distinguish between these two concepts, since the degree of punishment for them differs significantly. For being late once, an employee can be reprimanded, but he cannot be fired. Absenteeism is considered a more serious violation, and therefore for this offense the employer has the right to terminate the employment contract with him.

What will happen to an employee for being late: types of penalties

The Labor Code of the Russian Federation establishes that the following penalties may be applied to an employee:

A reprimand is given to an employee for being late for a single time without a good reason.
A reprimand is a more severe sanction that is imposed if lateness is repeated again.
Dismissal for being late for work applies to an employee if it is repeated more than twice. In this case, the company administration decides to terminate the contract with the employee or apply a lighter penalty.

Russian Labor Code on penalties for disciplinary violations

The Labor Code is a legislative act that defines the labor relationship between an employer and an employee. In addition, it establishes state guarantees of the rights and freedoms of working Russians, helping to protect their rights and defend their interests.

Chapter 30, Article 192 of the Labor Code states that for violation of the company’s labor regime, its management has the right to apply the following measures to the employee:

A remark, that is, a warning (both oral and written).
A reprimand as a motivation for performing work duties, a non-material punishment.
Dismissal is a termination of a contract on the initiative of management (employer, administration).

It should be borne in mind that all these penalties are applied only in case of failure to fulfill labor duties through the fault of the employee; if he is not guilty, then his actions will not be disciplinary offenses.

In what cases will you not be punished for being late?

As soon as the employee shows up for work, he should be asked to explain the issue of late appearance at work. It is best if the employee writes an explanatory note. Based on its content, management makes a decision.

If the reason for being late is valid, and especially if there are supporting documents, the employee cannot be held accountable. If you ignore this right and punish a late worker, he will be able to restore his rights through the court.

How to register actual lateness, opinion of the Ministry of Labor

The current legislation provides sufficient grounds for bringing undisciplined employees to administrative responsibility. Existing legal norms make it possible to formulate rules of conduct for the employer in the event of an employee being late:

Demand a written explanation from the late employee. If the reason is sufficiently reasoned and fully satisfies the employer, the conflict can be avoided. If untrue explanations are reviewed that cannot be documented (or 2 witnesses), an act is drawn up recording the fact of lateness. Sometimes the employee refuses to explain; in such a situation, a corresponding act is also drawn up.
In connection with the presentation of any type of penalty to an employee, an order is issued, which states an inappropriate attitude towards labor discipline and specifies the form of administrative responsibility.
If the employee is late for the second time without good reason, the employer’s reaction will be more radical, and the employee will be fired.

List of sources

ipinform.ru
pravostoriya.ru
sb-advice.com
shtrafyinfo.ru

Dismissal for systematic tardiness: stages of the procedure

Recording the fact that an employee is late

If an employee does not show up at his place on time, then this fact must be documented. To do this, it is necessary to draw up an act in which the date, time and circumstances of the absenteeism will be recorded.

The law does not provide a special form for such an act. Usually it is compiled in any form by the truant’s immediate supervisor, or by the personnel officer who is responsible for maintaining the time sheet.

At least two people must be present when drawing up the act. They will act as witnesses to the incident and will put confirming signatures at the end of the document.

Attention! If an employee sues for wrongful dismissal, these employees will act as witnesses to the disciplinary incident.

Writing an explanatory note by a late employee

The employee must be asked to provide an explanatory note in which he can give his version of the event. The requirement to provide an explanatory note must be expressed in writing and submitted against signature.

It also usually specifies the period of time within which explanations must be provided. Most often, this takes 2 days.

The employee may refuse to provide an explanation. This does not mean that he cannot be punished in the form of a reprimand or dismissal.

Attention! If the allotted period has expired and explanations have not been provided, or the employee immediately refused to give them, a statement of refusal is drawn up.

Order of reprimand/reprimand

The employer does not have the right to fire an employee for the first time he is late; first he must be subject to milder penalties, a reprimand or a reprimand. To fix the chosen punishment, you must issue an order.

It is drawn up in free form, and it indicates:

Information about the employee (full name, position, etc.);
The circumstances of the offense committed (date, time, how it was discovered, etc.);
Type of punishment applied.

Attention! The completed order must be delivered to the employee against signature. It must be remembered that an employee can be disciplined only once for one violation.

Recording repeated lateness of an employee

If the employee continues to be late, then in each case it is necessary to act in the same way - draw up a violation report, request an explanation from the employee, and bring disciplinary action.

However, in this case, it is necessary to remember that as soon as within 12 months the employee is held accountable 2 times or more, this will be a reason to dismiss the employee under the article for systematic tardiness.

Attention! It must be remembered that a pregnant employee is not subject to dismissal under any circumstances. Judicial practice shows that even if the dismissal was justified, by a court decision she will still have to be reinstated in her place.

What are the consequences of being late?

For one offense there can be only one punishment. 193 Labor Code of the Russian Federation. And it can be applied within a month after the violation is discovered. This period does not include illness, vacation of the employee and the time during which the trade union will express an opinion about the misconduct. If six months have passed since the discovery of the offense, the culprit can no longer be punished.

When the employer detects a delay, he decides what to do. Dismissal is a last resort. Besides it, there are several other not very pleasant options for Art. 192 Labor Code of the Russian Federation.

Comment

The mildest punishment. Usually applied if the offense is minor or the employee committed it for the first time. The employer issues an order to declare a reprimand, which is valid for a year. During this time, the employee is under close supervision. If he deserves a bonus, then the amount may be reduced or not paid at all. Perhaps the remark will be entered into a personal file. All these conditions remain at the discretion of the employer.

The remark may be removed ahead of schedule Art. 194 of the Labor Code of the Russian Federation, if the manager wants it, the superior boss, the trade union or the offending employee himself will ask in writing.

Rebuke

As a rule, this is a punishment for offenses of moderate severity. For example, for being late again. The boss issues an order to issue a reprimand. It can just as easily be withdrawn ahead of schedule. There are no severe reprimands or reprimands entered into a personal file. The Labor Code has one clear wording on this matter. If the employer announced something else, this is a non-existent penalty, for which the head of the station himself will be responsible. 5.27 Code of Administrative Offenses of the Russian Federation.

There is no strict order in the legislation - first there is a reprimand, and then a reprimand. It all depends on the specific violation.

The Labor Code of the Russian Federation stipulates general disciplinary liability. But for some professions there is also a special Commentary on Art. 192 Labor Code of the Russian Federation. Civil servants, railway workers, sailors and some other categories of workers can be involved in it. Punishments for violations are enshrined in the organization's charters and discipline regulations.

An employee does not agree with the dismissal: where to go?

If an employee is fired, but he does not agree with this event, then it is necessary to act immediately. The fact is that the claim period for dismissal is quite short - only one month. And if you miss it, you can restore it only if there are really compelling reasons.

Algorithm of actions

If an employee repeatedly violates the rules of labor discipline established at the enterprise, then the employer has the right to end the cooperation on his own initiative, using termination of the agreement as a penalty. The law establishes a procedure for dismissal for being late, and step-by-step instructions will help you carry it out correctly:

If a violation is detected, it is necessary to draw up an act of violation of internal regulations and certify it with the signatures of three witnesses. They can be the employee’s immediate supervisor, a specialist from the enterprise’s human resources department, and a colleague of the offending official.
The employee should be required to provide a written explanation of the misconduct. He is given two working days to provide the document. If at the end of the specified period the explanatory note has not been received, then the employer should draw up a special act documenting the lack of explanation from the employee. A person’s refusal to write a document cannot be considered an independent violation, and therefore imposing penalties for such behavior is unlawful.
It is necessary to request from the official documents or testimony that will confirm the reasons for the misconduct indicated by him. After reviewing the evidence presented, the employer needs to determine whether the grounds can be considered valid.
Within a month from the moment the violation is discovered, an order for collection should be issued, and then within three days, subject to signature, it should be familiarized to a specialist. If an employee refuses to sign a document, a corresponding act is drawn up, which is certified by the signatures of witnesses.
A copy of the order must be placed in the official’s personal file for one year. At the end of this period, the disciplinary sanction is considered lifted, and therefore cannot be taken into account when dismissing for lateness.
If the employee is late again, then all of the above actions, with the exception of issuing an order, should be repeated in the same order.
The new order imposes a penalty on the employee in the form of dismissal for violation of labor discipline in accordance with Art. 81 Labor Code of the Russian Federation.
The employee must be familiarized with the order to terminate the employment contract upon signature. If the employee refuses to sign, then a corresponding mark is placed in the document.
If the specialist asks for a copy of the order, it must be properly certified and issued.
A work book, completed in accordance with legal requirements, is issued to the employee against signature on the last day of work. A special note is placed in it indicating that the person was fired due to repeated lateness.
The final payment is made on the same day. The employee receives a salary for the time worked and a compensation payment for unused annual leave.
The order to terminate the employment contract is accompanied by documentation confirming that the employer has grounds for dismissing the specialist (acts drawn up on the facts of lateness, comments and reprimands issued, orders for deprivation of bonuses).

The process of completing cooperation must be treated very carefully. Any mistake may become a reason for the employee to challenge the legality of the dismissal, as well as reinstatement through the court.

What should a late employee do to avoid being fired?

On any day, a situation may arise that it is not possible for an employee to get to work on time.

In such a situation, it is better to act step by step as follows in order to reduce possible sanctions from superiors to a minimum:

First of all, you need to warn your immediate superiors about the delay, and also explain the reason for what is happening. This must be done in any case, whatever the reason - overslept, got stuck in a traffic jam, the bus broke down, etc. If this happens rarely, then the boss can treat this event with understanding.
If the reason for the delay was positive, it is necessary to obtain a supporting document. If the employee went to see a doctor, he needs to get a certificate from a medical institution; if he was in an accident, he needs a certificate from the traffic police, etc.
Be sure to write an explanatory note. This document is not exculpatory, but it allows you to present the incident from the point of view of the employee himself. You can also attach supporting documents to it, if any.

If you are late, it is highly not recommended to lie. It’s better to tell your boss the truth and promise not to do that than to come up with credible reasons for showing up late to work. It is also not advisable to falsify documents, since any of them can be verified.

Important! If the certificate turns out to be fake, then not only the employee himself may be fired for loss of confidence, but also the official (doctor, traffic police inspector) who issued the falsification may also be punished.

THE FACT OF LATE MUST BE RECORDED

Setting the rules

As a general rule, the employer establishes the working hours and rest time for employees in the internal labor regulations. If such a regime for a particular employee differs from the general rules in force for the employer (established in the internal labor regulations), then it is indicated in the employment contract concluded with the employee (additional agreement to the employment contract).

Also, the working hours and rest periods of an employee can be determined by a shift schedule (for shift work) or a work schedule (for example, when establishing an individual work schedule).

Extract from the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (as amended on November 24, 2015)

35. When considering a case on the reinstatement of a person dismissed under paragraph 5 of part one of Article 81 of the Code, or on challenging a disciplinary sanction, it should be taken into account that failure by an employee to perform without good reason is a failure to fulfill labor duties or improper performance due to the fault of the employee of those assigned to him labor duties (violation of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc.).

Thus, the employee’s obligation to come to work at a certain time must be fixed in a local regulatory act (for example, in the internal labor regulations) or in the employment contract (additional agreement to it), work schedule (shift). Moreover, the employee must be familiarized with this document upon signature.

We file violations

In order to record the fact that an employee has committed a disciplinary offense (being late for work), the following documents must be drawn up:

• a report on the fact that the employee was late for work. Such a note is written by the employee’s immediate supervisor addressed to the head of the organization (example 1);

• act of committing a disciplinary offense. As a rule, it is drawn up by the employee’s immediate supervisor or an employee of the HR department and signed by at least two witnesses (example 2);

• reflect the fact that the employee is late in the timesheet (hereinafter referred to as the Timesheet).

The employer is obliged to keep records of the time actually worked by each employee (Part 4 of Article 91 of the Labor Code of the Russian Federation). To record working time, either a unified form of the Timesheet is used (unified form No. T-12 or No. T-13), or a form independently developed and approved by the employer. The use of a specific form of the Timesheet is fixed in the accounting policy of the organization.

The Timesheet can also be used by the employer to monitor employees’ compliance with the established working hours.

It is very important for the personnel officer or other person responsible for maintaining the Timesheet to reflect in this document the number of hours (hours and minutes) that the late employee actually worked on his working day (shift). Employers often pay more attention to the preparation of memos, orders and making entries in the work book of the dismissed employee

It turns out that on the day of delay, the Timesheet indicates the full number of hours worked on a working day (shift) without any reduction for the time of delay

Employers often pay more attention to the preparation of memos, orders and making entries in the work book of the dismissed employee. It turns out that on the day of lateness, the Timesheet indicates the full number of hours worked on a working day (shift) without any reduction for the time of delay.

For example, an employee was late for work by one hour, but the report card indicates that he worked 8 hours instead of 7 hours. This fact can play against the employer in the event of a trial for illegal dismissal of an employee. If the employee’s tardiness is not recorded in the report card, then it will be difficult for the employer to prove that there was a tardiness.

However, in some cases, courts recognize the dismissal of an employee as legal if the employer has other evidence confirming that the employee was late for work.