Step-by-step instructions for dismissing an employee for absenteeism under Article 81 of the Labor Code of the Russian Federation: deadlines, sample order, payment of compensation

Business lawyer > Labor law > Dismissal > Terms of dismissal for absenteeism and the mechanism for parting with an employee

According to existing legislation, absenteeism is considered to be the failure of a subordinate to show up for work on a day that is considered a working day, and even his lateness by 4 hours or more. But the terms of dismissal for absenteeism apply only in the absence of compelling reasons that are considered valid. In practice, a document about a visit to a doctor, about caring for a sick child, about the death of a loved one, about getting into an accident, and other similar situations is accepted as confirmation of the high status of the reason for an employee’s stay outside the workplace.

You also need to understand what is meant by the workplace of a particular employee. He could be on the territory of the employing company, but not at his machine or desk. In this case, the situation cannot be qualified as truancy. There are many other points that need to be taken into account in order for the dismissal to be carried out legally correctly. And the first thing you need to do for this is to correctly attest to the fact of absenteeism.

Rules for registering the fact of absenteeism

Proper documentation of absenteeism will become the main document in the event of litigation over dismissal. Therefore, you need to correctly perform all the necessary actions:

Certify that the person is not at work by drawing up the appropriate act and registering it in accordance with the law.
Display absenteeism on the report card maintained by the head of the department.
Find out the reason for absence and the extent to which the grounds for failure to appear at the enterprise are valid.
Invite colleagues who discover a person’s absence from work to write memos addressed to a superior manager.
Take an explanatory note from the employee immediately after he appears at work after absence.
In case of refusal to draw up an act of disagreement, write an explanation with the signatures of members of the commission, which includes a representative of the trade union.

If an employee refuses to write an explanatory note, the employer must give him a written notice that he must do so. Such a notice, pre-registered in the manner prescribed by law, is issued to both parties to the conflict. The explanation received is also recorded in the appropriate journal. A period of two days of failure to provide an explanation is the basis for writing an appropriate act with subsequent registration in the personnel register. Therefore, the lack of an explanation will not prevent you from punishing a negligent subordinate. After all, filing an explanatory note is a mandatory requirement for a truant worker, specified in the Labor Code of the Russian Federation.

On what day should an employee be fired for such a violation?

A clear explanation on this point is given by paragraph 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2. According to the Resolution, truancy is considered :

If the worker did not show up at work the whole day without good reason (and the assessment of respect is given by the employer).
If the employee did not appear within the workplace for more than four consecutive hours during his working day.
Leaving work by an employee working under an open-ended employment contract, but wishing to terminate the employment relationship, without warning the employer, as well as before the warning period (before the expiration of two weeks).
The departure of an employee working under a fixed-term contract before its expiration.
Using vacation days without the permission of the manager, as well as going on vacation without following the vacation schedule.

Thus, in the presence of the above circumstances, the employer has every right to terminate the employment contract (you can find out how to fire a negligent employee for absenteeism here). But what to do when an employee does not show up for work for quite a long time, because there is no such thing as prolonged absenteeism in the legislation and the law does not provide any leverage.

In this case, the employer has to make decisions solely at his own discretion, which are not always recognized by the court as lawful. In any case, you should adhere to the rules established by Part 3 of Art. 84.1 of the Labor Code of the Russian Federation and dismiss on the day before the day of absenteeism.

Issuing a dismissal order for absenteeism

If a person’s absence from work really cannot be called respectful, then his further fate will depend on the decision of the company’s management, up to and including dismissal. But at the same time he must follow the procedure for such action. If the matter has gone so far that there will be no forgiveness for the negligent employee, the director of the enterprise issues an order of dismissal for absenteeism. When drawing it up, you need to take into account and display on paper all the key aspects of the offense:

Is it the employee’s fault for unexcused absence?
Complications in work processes caused by its absence
The severity of the irresponsible act committed
Having a similar employee attitude towards work previously
Circumstances of the misconduct and subsequent actions of the employee
Conclusions about the regularity of such an attitude towards one’s responsibilities

Before issuing an order to terminate an employment contract with an employee, you need to once again check that the employee has no valid grounds for doing so. After all, you can fire him, but this will be considered legal only in the absence of such reasons for absenteeism. And in general, you can reprimand, and not count on a person. Although situations are different.

Dismissal is a legal act that requires compliance with all norms of current labor legislation. So, in order to pay an employee, the terms of dismissal for absenteeism that are acceptable for such a penalty must be met.

They will be exceeded if more than a month has passed since the date of recording of the person’s violation of discipline. This period does not include days on sick leave or vacation. The period allocated for clarifying the decision of a trade union or other type of representative body is also not taken into account. And if six months have passed since the date of this offense, then disciplinary punishment can no longer be applied. But this period does not include the time spent investigating the controversial case.

It is often difficult to determine the exact date when a person was fired for unlawful absenteeism. Sometimes such an action is formalized on the date when the employee showed up at work and wrote an explanatory note. But if the period of missed days is quite large, it is not very clear what date to use for the calculation. You can calculate the exact day using the Labor Code, according to which the contract is terminated on the last day when the person actually worked. If he does not appear at the enterprise for a long time without good reason, even after official notifications, then the last date of his appearance before absences will be accepted as the date of dismissal.

Procedure for terminating an employment contract

If the employer has decided to dismiss for absenteeism, the date of dismissal should be the day that preceded the unlawful absence from work. In fact, this is the last working day. This type of penalty should be applied only after all the circumstances have been clarified. The employer is obliged:

contact the absent subordinate to demand an oral or written explanation (without this, the court may declare the dismissal illegal and return the person to work);
provide 2 days for the employee to provide his explanations in person or send by mail (Article 193 of the Labor Code of the Russian Federation);
make a decision and issue an order.

If, at the request of his superiors, an employee refuses to give an explanation, a report is drawn up.

In order to avoid violations of labor laws, this must be done after the allotted two days have passed, but no later than a month after the fact of absenteeism is revealed. After 30 days, no disciplinary action can be taken.

The employer must strictly adhere to the requirements and provisions of the law. Firstly, the fact of absenteeism must first be proven by attracting witnesses. These can be the heads of divisions and departments who put their signatures on the drawn up act. Secondly, it is necessary to determine whether absenteeism is one-time or long-term (more than 1 working day). The court and labor inspectorate most often take the side of the workers, therefore, if the collected evidence of absenteeism is insufficient, a decision may be made about the employer’s unlawful actions.

To record a violation of labor discipline, it is necessary to draw up a report with the following information:

information about the employee who committed the offense (full name, position held);
indication of the time of absence (accurate to minutes);
time of writing the act;
information about present witnesses (at least 3).

The report is sent by mail or delivered personally to the offending employee. On this basis, he is obliged to provide justifications, which the employer will subsequently consider and decide. Each case is exceptional and individual, therefore it is unlawful to apply the standard dismissal scheme for the first absence or tardiness.

Making a record of dismissal for absenteeism in the labor record

Upon completion of the formation and issuance of the order to terminate the contract and registering it in the appropriate journal, the person should be familiarized with this document under his personal signature. If this is impossible to do due to the non-appearance of the former employee, as well as the reluctance to get acquainted with the issued document or leave his signature on it, management will only have to make an appropriate entry in this order in accordance with the Labor Code. In case of refusal to familiarize yourself with the order, you must also write an act. After this, it must be registered in the appropriate journal.

The next stage of this legal act is the entry of dismissal for absenteeism in the work book. At the same time, an entry is made in the employee’s personal file. He must again certify each of these entries with his personal signature in the proper manner. After all, the employer must notify any employee with each entry in his card and work book. And the fact of such familiarization is confirmed by the employee’s signature. Entries can be made in the labor record not only about hiring and dismissal, but also about the position held, about transfer to another position, about incentives and penalties.

The HR department employee is obliged to copy the employment record of the employee who was included in the calculation in order to save confirmation of the fact of work and termination of the contract in the archive. After this, directly on the day of payment, the work certificate is handed over to the person. Sometimes this is impossible to do due to its absence or refusal to receive the document. Then the employer will be forced to send a notification to the former subordinate that he must come to the enterprise and receive his work permit or agree to send the document via mail.

The notification of receipt of the shipment from the labor office is legal confirmation of the issuance of the document. After this, the personnel officer can make an entry in the appropriate labor register about the fact that the dismissed person was issued his or her work permit.

Is it possible to fire retroactively and what does this mean?

Can. Part 6 of Article 84.1 of the Labor Code of the Russian Federation exempts the employer from liability for the delay in issuing a work book if the last day of work does not coincide with the day of dismissal for absenteeism, which means it allows for a situation where the termination of the employment contract occurs retroactively.

First of all, you should record the fact of absenteeism. To do this, it is advisable to try to contact the employee to find out the reasons for his absence from the workplace, because it is not at all necessary that the person did not go to work solely due to his own negligence.

Reasons for not going to work may include::

employee illness;
fulfillment of civil or public obligations;
performing donor functions or undergoing a medical examination for these purposes;
detention (for example, arrest);
emergency situations resulting in the impossibility of arriving at work at the appointed time (for example, work carried out by emergency services that require immediate access to the employee’s home), etc.

In all of the above circumstances, there is no need to rush to formalize dismissal for absenteeism, since the courts, when assessing the validity of an employee’s absence from the workplace, often side with the worker as the more vulnerable party in the labor relationship.

If it was not possible to find out the reasons for absenteeism, then the fact of the employee’s absence should be reflected in the working time sheet by putting down the appropriate designations. Also, the immediate supervisor of the absent employee must report these circumstances in a memo to higher management authorized to issue orders.

It would also be useful to draw up an absence from work report with the signature of two witnesses (for example, colleagues of the absentee).

Do not forget that dismissal for absenteeism is a disciplinary measure, the application of which must be carried out in a certain manner.

So, according to Part 1 of Art. 193 of the Labor Code of the Russian Federation, before applying one or another disciplinary measure, the employer must request a written explanation of his behavior from the offending employee.

But how to do this if the employee never shows up? You should not send a request for explanations to the employee’s place of registration , and the postal item should be sent by registered mail with acknowledgment of receipt. This is the only way in the future the employer will be able to confirm compliance with the requirements of Art. 193 Labor Code of the Russian Federation.

Further, from the moment such correspondence is delivered to the employee’s address, you should wait two working days. If, after their expiration, the employee still does not provide an explanation, the employer must draw up an appropriate act about this, after which an order is issued.

Correct payment terms in case of dismissal for absenteeism

The exact terms of calculation for dismissal for absenteeism are established by the Labor Code. A person must receive all the money due to him and full payment on the day he is paid. And if a person stays at the enterprise on the day of termination of the contract, then it will be accepted as the last working day at this place. And the manager does not have the right, at his own discretion, to postpone the date of settlement with the employee.

According to the law, there are no separate deviations regarding the time of settlement with a subordinate, despite any reasons or wording for breaking the contract, except for full payment on the last working day. The payment amount includes:

compensation for all unused vacation time by subordinates, including additional
a person’s salary for the entire period worked, including the last exit to the workplace
settlement allowance and other compensation according to the law for certain categories or at the discretion of management

All settlement amounts should be calculated correctly and given to the former subordinate upon leaving along with the labor payment. Payment can be either cash or non-cash - as is customary at the enterprise. If a person is not at work on the day of payment, all funds must be given to him no later than the second day from his appearance.

For late payments to the resigning employee, the company will be forced to pay him interest, which is, in essence, a fine. After all, if there is a belated settlement with dismissed subordinates, the manager will incur a double penalty - not only administrative, but also financial to the employee himself.

If the settlement amount also became the cause of a dispute, the manager is obliged to promptly issue the money that is not disputed, within the period specified in the law. The law also provides for compensation for vacation that a person was unable to take.

Grounds according to law

Dismissal for absenteeism is provided for under Article 81 of the Labor Code of the Russian Federation (clause “a”, clause 6), and refers to disciplinary punishment. This is considered to be the absence of an employee from the workplace :

During a full working day, even if its duration is less than 8 hours;
For four hours continuously and without good reason;
Without an officially issued warning of intention to terminate the employment contract;
If there is a letter of resignation, but without working the two weeks required by law;
Due to time off or vacation that is used without following the required procedure.

Grounds for dismissal do not give the right to terminate a contract with certain categories of persons. These include, for example, pregnant women, mothers or fathers who are raising children on their own, and others.

Good reasons include detention by law enforcement agencies as a suspect or witness, natural disasters, emergencies, etc. In addition, these include legal advice on issues of violation of labor rights, participation in a court hearing on a subpoena, as well as employee illness.

Consequences for an employer in case of illegal dismissal of an employee

The court recognizes a dismissal carried out contrary to the current procedure as illegal. If a manager terminates a contract with a subordinate without complying with current legislation, then his actions may be considered illegal. Especially if a person files a lawsuit. And all the consequences of illegal dismissal are clearly described and regulated by the Labor Code of the Russian Federation.

The result of a rash act can be:

Restoring a person to the place from which he was calculated
Reimbursement of his average salary for the entire period of provoked absenteeism
Issuing the monetary equivalent of moral damages

Such decisions can be made by a court considering a specific labor dispute, based on the Labor Code of the Russian Federation. There are situations when a court obliges an employer to reinstate an illegally dismissed person. But during the litigation, his employment contract expired. Then the action is declared illegal, the date of termination of the contract and the indication of the correct reasons are changed in the personal file. Now, instead of designating the reason as “absenteeism,” the labor report will include the wording “at the end of the employment contract.”

Also, when resuming a previous position, the subordinate will need to resume the continuous period of service, and the period of provoked absenteeism will be included in his length of service and in the vacation calculation schedule. During this period, he can receive payment as temporarily disabled, although he has not started performing work.

If an unfairly calculated employee must be reinstated by a court decision, and his place is taken, then the one who at that time entered his position, the employer is forced either to transfer to another place, taking into account his consent, or to dismiss him altogether according to the Labor Code of the Russian Federation.

If at this moment the company has ceased to exist, the employee receives a payment in accordance with the Labor Code of the Russian Federation. He is entered into the work book as “dismissal due to liquidation of the enterprise” and is given appropriate payments, including severance pay.

If reinstatement at work is delayed for any reason, the employer will also be forced to pay compensation in the amount of the average salary or the difference in pay if the person is still working in a less profitable position.

If the court canceled the termination of the contract, and the person was unable to find a new job during the period of litigation, since the wording in the labor contract prevented this, then, by order of the court, he may be paid compensation in the average amount for the period of involuntary absenteeism.

With such a painful dismissal, the employee has the right to prove that he has suffered moral damage and through the court to defend the compensation due in the amount that he considers commensurate with the harm caused to him.

But if the employee expresses such a wish, then the court has the right to make a decision to recover from the enterprise the average compensation for involuntary absenteeism with correction of the indication of the grounds for calculating termination of the contract at one’s own request.

Absenteeism at work: definition and types

Absenteeism is the absence of an employee from the workplace for four hours in a row without any valid reason. It is a significant reason for terminating an employment contract on the initiative of the employer.

There are two types of truancy:

short-term - when an employee soon appears at the workplace, or is absent, but contact can be established with him;
long-term – the employee’s absence from work continues for a long period, and it is impossible to establish contact with him.

To dismiss an employee in the first case, you need to require an explanatory statement from him in writing in accordance with Article 193 of the Labor Code of the Russian Federation.

If he refuses, the employer has the right to draw up a report and also take testimony from witnesses confirming that the employee was indeed absent from work. Based on them, it will be possible to draw up a dismissal order. Circumstances become more complicated when a citizen has disappeared and it is impossible to establish contact with him - how can he be fired then?

Articles on the topic (click to view)

What to do and where to go if you are not paid upon dismissal
What to do if you are laid off at work
What to do if the employer does not want to fire at his own request
What to do if the date of the dismissal order is later than the date of dismissal
What to do if the employer does not give the work book after dismissal
What to do if you didn’t work officially, you were fired, you didn’t get paid
What is the employer obliged to give the employee on the day of dismissal?

Of course, until the reason for not showing up for work is clarified, it is illegal to kick him out of work. After all, if this reason turns out to be valid, the employee can then be reinstated in the service through a judicial procedure.

Allowable time limits for appealing illegal dismissal

A person dissatisfied with the calculation often goes to court with a claim. However, the legislation provides specific deadlines for this, regulated by the Labor Code. In particular, the period of time for appealing the employer’s actions through the court is limited to three months from the date of delivery of the notification of the decision or the day on which he was required to be notified of such a violation. As for disputes about the breakup, only a month is allotted for them from the date when the person was given an order about this or his work report.

This deadline for appealing dismissal in court with the intention of returning to the old job is also tied to the moment of receiving a copy of the payroll and employment documents. The date when he refused to receive the listed documents is also considered such a day.

But even if such deadlines were not met, the court has no reason to refuse to accept a claim for wrongful dismissal. This is not affected by the absence of reasons for delaying time and the decision of the labor dispute commission, which refuses to consider the employee’s application due to loss of deadlines.

The court, studying each individual case individually, has the right to recognize the delay as having taken place for compelling reasons and accept the plaintiff’s application for litigation.

If the plaintiff has not invested in the required period of time, he can restore his right, again through a court hearing. Good reasons for missing the time to apply to the court are considered to be circumstances that significantly prevented a person from filing a claim to resolve a given dispute on time. The most common reasons for this are:

illness of the plaintiff himself with provision of sick leave
his stay on a business trip with the submission of supporting documents
force majeure, emergency circumstances, road accidents or natural disasters
caring for a sick child or seriously ill adult family member

This is not a complete list of legal circumstances related to the deadlines for refuting calculations. The Labor Code gives the court all rights to restore lost terms. The court is obliged to assess the reliability and sufficiency of the reasons for extending the period for legally filing a claim. In this case, it is necessary to check all the circumstances of the case that prevented the plaintiff from timely filing documents with the court to resolve this dispute.

Does an employee have the right to be reinstated?

Theoretically, he can be reinstated at work. He has the right to file a lawsuit for illegal dismissal and prove it.

If the court makes an appropriate decision, he will be reinstated in his position, and the employer will pay him money for the entire period of absenteeism. But this whole unpleasant situation will not have the best effect on the relationship with the authorities and the reputation of the citizen: he will have to work in extremely uncomfortable conditions.

Therefore, it is better not to skip work, and if something unplanned happens, notify management in time. The topic of dismissal of employees under the article is far from a holiday and not the most positive news for both the company’s reputation and the employer.

He knows that an employee fired for absenteeism, if dissatisfied, will want to go to court, which will suddenly take his side and reinstate him in his job.

The employee will demand compensation and other payments that are undesirable for management. And then we’ll have to work together. Therefore, it is recommended not to violate the labor agreement, and in the case of a precedent, not to aggravate the situation and seek a compromise.

Is it possible to fire a pregnant woman for absence from work without good reason?

Many employers are concerned about the question: can a pregnant woman be fired for absenteeism? But there is a list of situations and persons for whom special conditions for organizing work apply, including the impossibility of the employer unilaterally terminating the contract. In order not to be mistaken with your conclusions, you need to check the likelihood of a person’s attitude to the list of those whom it is simply unacceptable to dismiss under the Labor Code. Thus, the law states that a manager does not have the right to terminate a contract at will if a subordinate is pregnant. She can be fired only in the event of liquidation of the enterprise.

The Labor Code determines a list of preferential conditions and additional guarantees for pregnant women. So, according to their wishes:

The duration of work per day can be 6 hours
time at the computer is limited to only 3 hours per day
difficult work with physical activity can be replaced with easier one
they are relieved of responsibilities associated with toxic, unsafe conditions
night shifts, business trips and other business travel are canceled
they may be granted annual paid leave if they have 6 months of work experience

If a woman chooses to abuse such a preferential position, the employer has the right to apply disciplinary punishment to her. Thus, according to the law, it is permissible to use punishments in the form of a reprimand, oral or written reprimand. By the way, he may be included in the labor force, which will also become a stain for life.

The article does not cover all legal issues related to the timing of dismissal for absenteeism, the legality of termination of an employment contract, the possibility of appealing one’s rights through the court, and so on. You can understand any similar problem in more detail by reading the articles on the site. But the best option for help is our legal advice.

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Special cases

The law does not allow termination of a contract with a person who brought a confirming sick leave certificate to the manager after the dismissal order was drawn up. Such absence is considered individually, but most often the court takes the employee’s side. The actions of the authorities will be recognized by the court as unlawful, and the person will be reinstated in his previously held position with compensation for forced absence. However, if, in the presence of sick leave, the employee did not provide it to the manager intentionally, trying to hide this fact, his actions will be recognized by the court as compromising. In such cases, the law will side with the employer.

Despite the fact that you can provide sick leave to confirm your absence at the end of your illness, you must notify management on the first day of absence from work.

Labor relations with expectant mothers are regulated separately by law. The Code prohibits any attempts by management to terminate a contract with a pregnant woman, even if regular violations of labor discipline are recorded. Dismissal is allowed only in two cases:

complete liquidation of the enterprise;
termination of all types of individual entrepreneur activities.

For pregnant employees, the manager cannot apply such a sanction as dismissal under the article.

The maximum permissible sanction is a reprimand or reprimand. In this case, the court does not take into account whether the employer was aware of the woman’s delicate situation. The dismissal will be considered unlawful and the employee will be reinstated.

Absenteeism is considered a gross offense and is regarded by employers as a frivolous attitude towards service. Therefore, many managers try to get rid of careless subordinates. Not everyone agrees with the decision of the authorities and is trying to restore justice through the courts. However, in any situation it is important not only to remember your rights, but also your responsibilities.

Procedure for removal from duties

The main requirement that must be observed is that dismissal as a disciplinary measure is applied after an unjustified reason for absence from work is established. Without this, an order cannot be issued. In a normal situation, when an employee does appear at the enterprise, and his absence was short-term, this requirement can be observed.

Even in case of refusal to write a written explanation, an act about this is drawn up, and its absence is also recorded (by another act). With a long walk, the procedure is slightly different.

Drawing up an act

If the date of dismissal for absenteeism is the employee’s last working day before his absence from the enterprise, the following procedure will follow :

Make a written request addressed to the absent employee.
Send it by valuable letter with a list of the contents and notification of delivery.
When sending a telegram, receive a certified copy of the item at the post office.
Every day the employee is absent, draw up a report about this.

Then all that remains is to wait for an answer or for the expiration of a reasonable time when it could arrive. As a rule, this is one working week - two days for preparing a response and up to three days for mailing. After this, an act is drawn up, which reflects the fact of the employee’s absence and explanations from him. The document is signed:

The head of the personnel department or the person performing his duties.
The immediate supervisor of the truant.
Two other employees of the company.

Often an enterprise consists of two or three people who work in shifts, one of them is a violator, and the other workers cannot be brought together. In such a situation, you can involve other persons who are not employees of the enterprise in drawing up the act. It is recommended not to involve relatives.

Making an order

After the documents appear in the hands of the enterprise management, they proceed to drawing up a dismissal order. It indicates the reason, article (paragraph “a”, paragraph 6 of Article 81 of the Labor Code of the Russian Federation), the date of dismissal for absenteeism.