For a good reason

For a good reason

Analysis of labor discipline at the enterprise and methods of its strengthening (on the example of RUE with

Trading activity is an intermediary activity to promote goods from the producer to the consumer. In system agro-industrial complex agricultural and industrial enterprises sold mainly in bulk. However, in recent years, many enterprises have created their own branded stores through which they sell their products. So RUE s / c "Zarya" began to open its stores in 2001.

Will there be a valid reason for absence from work if, when an employee visited a doctor, he was not given a sick leave?

Answer: The Labor Code of the Russian Federation does not contain a list of reasons for the absence of an employee from the workplace, which should be considered valid. Appeal for medical care is a valid reason for the employee's absence. However, if an employee, as a result of visiting a doctor, was not recognized as disabled and had the opportunity to go to work, but did not appear at the workplace, his absence may be considered disrespectful.

How is an employee absenteeism for a good reason? what order is issued?

1 answer. Moscow Viewed 117 times. Asked 2011-08-07 08:40:15 +0400 in the topic " labor law» Does an interim employer have the right to dismiss an employee for absenteeism without good reason. - Does the temporary acting employer have the right to dismiss an employee for absenteeism without a good reason. Further

1 answer. Moscow Viewed 168 times. Asked 2012-10-13 12:56:48 +0400 in the topic "Labor Law"

How to turn absenteeism into respectful passes?

The employment contract obliges all employees to be at the workplace every day, fulfilling their job descriptions. Any violation of the Labor contract without prior agreement with the employer, in which case the law will be considered solely as an unacceptable and unauthorized act on the part of the employee. Accordingly, self-willed unilateral violation of the Labor contract by the employee is subject to punishment.

What are valid reasons for being absent from work?

Question: Subparagraph "a" of paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation established that absenteeism is the absence of an employee from the workplace without good reason throughout the working day (shift), regardless of its (its) duration, as well as the absence from the workplace without good reason for more than four hours in a row during the working day ( shifts). In this regard, a number of questions arise. What reasons are valid? Is there a set list of them? Is it possible for employers to abuse in terms of recognizing certain reasons as disrespectful and, as a result, illegal dismissal worker?

Answer: Neither in the Labor Code of the Russian Federation, nor in any other regulatory legal act is there a list of valid reasons for absence from work.

What letters should indicate in the report card the absence of an employee at the workplace for a good reason?

The employee did not show up for work because the roads were closed due to weather conditions he was unable to get to work. This fact is confirmed by the certificate of the Ministry of Emergency Situations. At the time of non-appearance, the designation “НН” was affixed to the report card.

What letter designation should be changed to “НН” after documents are received confirming that the reason for the absence was good?

The period of absence of an employee from work due to the inability to get to the place of work due to weather conditions is noted in the time sheet with special symbols independently introduced by the employer.

Justification of the conclusion: As follows from the content of paragraphs.

What are good reasons for not showing up for work?

Valid reasons for not showing up for work are not defined in a clear list by law. Therefore, the question posed in the title of the article is asked at least once in a lifetime by every working person. Let's try to find the answer.

You can't go to work without a good reason. Every worker knows this. Absence from work is fraught with: at least - an explanation with the authorities, as a maximum - dismissal for absenteeism "under the article."

About the reasons for the absence of an employee at the workplace

Question. The Labor Code does not say what reasons for the absence of an employee from the workplace should be considered valid. Still, what criteria should be followed when deciding on the punishment of an absent employee?

O. Kh. Indeed, there is no list of valid reasons, and in each specific case, the employer, or rather the manager, needs to deal with this issue.

Absence from work

What is absenteeism and is it possible to avoid dismissal after it

Once skipped - and you no longer work. Unfortunately, we have to admit that layoffs for this reason are still popular. Meanwhile, what is still considered absenteeism, how to avoid unpleasant situations here, and should the employer go to the “extreme measure” - farewell to the employee?

Good reasons for leaving

To answer these questions, the Zvyazda correspondent decided to meet with the Deputy Head of the Department of Legal Support and Control of the Department of State Labor Inspection of the Ministry of Labor and social protection Vadim Yakovlevich BROTASH.

count the minutes

As you know, absenteeism is the absence from the place of work for more than 3 hours without good reason. At the same time, “critical” time can be accumulated both continuously and as a whole throughout the working day. The essence of this will not change. However, one nuance should be taken into account here: the basis for considering absenteeism is an unreasonable “lateness” of more than 3 hours. Absence even for 180 minutes is a violation, entailing only disciplinary action- reprimand or remark.

“One more nuance should be recalled - absenteeism is the absence not at the workplace, but at the place of work,” Vadim Bratash notes. - After all workplace- this is specifically a machine, machine or office. Whereas the place of work is the territory of the organization, as well as an object outside the territory of the organization in which the employee must perform his labor obligations.

Always take notes

One of the most difficult questions is what is a good reason for being absent from work? They are not defined by law, respectively, the right to give an assessment in this case belongs to the employer or labor dispute resolution bodies, including the court.

At the same time, in practice, the illness of an employee, a member of his family, a violation of work are usually recognized as valid reasons. public transport, unexpected housing and communal problems, permission to absenteeism from direct management. But it is worth remembering: so that later there are no problems, all good reasons must be confirmed by documents, for example, a certificate from a polyclinic or, in the event of a water pipe break, a certificate from the housing department.

“There are examples when an employee is asked to leave, as if they give him verbal consent, and then he is fired for absenteeism,” Vadim Bratash notes. - In order not to fall into such a trap, it is best to write an application with a request to allow social leave on the required day due to family and domestic circumstances. And then - be sure to wait for the order or order of the employer.

Nobody terminates the contract

It would not be superfluous to note that grounds for talking about absenteeism also arise in some other cases. It is precisely such an entry in the work book that an employee who decides to independently “terminate” the contract before the end of its term and ... simply does not go to his place can receive. Moreover, this also applies to situations where an employee believes that labor legislation is being violated in relation to him - in any case, such violations must first be confirmed by the state labor inspectorate, trade unions or the court.

Dismissal for absenteeism is fully probable when an employee with an employment contract for an indefinite period writes a statement, however, contrary to the employer's request, he does not work for a month after that. Absenteeism will also be the unauthorized use of accumulated time off.

With the exception of cases established by law, when the right to time off does not depend on the decision of the employer - for example, we mean donors after donating blood or its components.

In addition, absenteeism is unauthorized, without agreement with the employer, going on vacation - even if the employee leaves to rest without registration on the day set by the schedule.

Meanwhile, isn't the most "piquant" moment - part-time students. Can they be fired for absenteeism if the employer does not give leave for the session?

“Employees who study part-time or in the evening at the direction of the employer or with the consent of the employer have the right to leave for the session and must provide such leave,” emphasizes Vadim Bratash. – However, if the employee went to study own will, then here it is necessary to agree on a vacation with the employer. True, it is possible that the court will consider the unauthorized absence from work in connection with the passing of the session as a good reason.

Holidays are not terminated without consent.

At the same time, it is not always necessary to talk about absenteeism. Such a disciplinary offense cannot occur in the absence of work for which medical contraindications have been established. Likewise, absenteeism cannot be penalized for waiving overtime, early recall from vacation, going to your place “out of schedule” on the weekend, or holidays- all this is possible only with the consent of the employee.

However, a significant reservation should be made about the weekend. The employer has every right to demand that the employee leave without his consent "out of schedule" if it becomes necessary to prevent a catastrophe, industrial accident, accidents, if it is necessary to eliminate natural disasters, restore the normal operation of water supply, heating, lighting, sewerage, transport and communications systems, provide emergency medical care.

– It will not be absenteeism and refusal to transfer together with the employer to another locality or refusal to work due to a change in ownership, reorganization, significant change working conditions - for example, a change in wages, - Vadim Bratash notes.

- In such cases, only dismissal can be made on other grounds and, moreover, with the payment of a 2-week severance pay.

Finally, the employee may not go to his place of work or refuse to work if there is a threat to his life and health or if the necessary funds are not available. personal protection. Use of any sanctions for such "absenteeism" is prohibited by law.

Recovery only through the court

Absenteeism belongs to the category of disciplinary offenses that do not require any systematicity - just one case is enough for dismissal. And regardless of whether the employee wrote an explanatory note or not. The employer must only inform the trade union of his decision or, if there is a corresponding entry in the collective agreement, obtain the consent of the trade union. In fairness, Vadim Bratash notes, in this case there is still one condition. Dismissal for absenteeism can occur no later than one month from the date of detection and no later than 6 months from the date of the offense.

It is worth noting that a disciplinary sanction can be appealed to the commission on labor disputes. However, in the worst case, only the court will decide the issue of restoring to the same place. In general, reminds Vadim Bratash, dismissal for absenteeism is precisely the right of the employer. And no one forbids the same employer to do with a more lenient punishment.

Zvyazda newspaper, original:

www.zvyazda.minsk.by/ru/archive/article.php?id=29260&idate=2009-02-17

Good reasons for absenteeism at work according to the Labor Code

Question:

Missed due to sickness. Is it necessary to write an application for an individual schedule for passing tests and exams if the student has already recovered and can take exams with the whole group? What to do with the test that was missed, will it go to the fall?

Vice Rector's response academic work Babelyuk Ekaterina Gennadievna:

In accordance with paragraph 4.3.3 of the Rules for training on basic educational programs higher and secondary professional education in St. Petersburg state university, approved by the order of the rector of August 16, 2012 No. 3480/1 (hereinafter referred to as the Rules of Education), the student's absence for the test (exam) is noted in the test, examination sheet, minutes of the meeting attestation commission the words "did not appear" or "absence".

According to clause 4.3.4 of the Rules of Study, if a student fails to appear for a test (exam) for an unexcused reason or if the student fails to provide a document evidencing the valid reasons for absence, no later than three working days after the date of issue this document Head of the Educational Department or other authorized rector official in the test, examination sheet, minutes of the meeting of the attestation commission, instead of the words "did not appear" or "absence", the mark "failed" or "unsatisfactory" is affixed.

In accordance with clause 4.4.2 of the Rules of Study, a student applying for an individual schedule for passing tests and exams must submit a personal application to the Education Department along with a document that is the basis for providing an individual schedule for passing tests and exams. A document confirming the validity of the reasons for the absence (for example, a certificate of temporary disability) must be submitted within three working days after the date of its issuance (closing).

Thus, if you have medical documents, confirming the validity of the reasons for missing the test, you need to submit them to the employees of the Education Department in the relevant direction within three days from the date of issue (closing) and write an application for an individual schedule for passing tests and exams.

The New Year holidays are over, and it's time to get used to the working rhythm. We will work, of course. But it's still nice to know that there are many valid and, most importantly, legitimate reasons to stay at home.

Holidays and weekends

Compared to other countries, Russia has too many holidays. This year, 118 days will be weekends and holidays. That is, every third day we, in fact, rest. The next public holiday is February 23rd. Although a few years ago it was a normal working day. Emancipation is here! For comparison, last year there were 116 "red days" in the calendar. By the way, if you worked on a weekend or a holiday at the initiative of the management, you have the right to ask for a day off. Or get monetary compensation. Work on weekends and public holidays is paid double.

legal leave

According to labor law, in most cases, a standard vacation of 28 days is provided. If you work in a hazardous industry, you may be entitled to an additional 12 days. Lots of people break them down.

Reasons for voluntary resignation

For example, they take three-day holidays (when one day is transferred, as a rule, to the previous Saturday) and several days before and after the holidays. Thus, you get a week. It's legal, but in some firms it's discouraged by HR. Since there are a lot of people who want it besides you. If you are often late at work, it makes sense to look into your labor contract. If it states that you have an officially irregular working day (for example, this practice is common in consulting or large foreign firms), you are entitled to an additional three days of vacation.

Non-flying weather

Remember how you listened to the radio with trepidation as a child in the winter? And having heard the cherished phrase about severe frosts, they did not go to school with a pure heart (but they went to the skating rink). In adulthood, Sanepidnadzor took care of us. According to sanitary rules and standards, each profession has its own temperature standards. So, if you are an office worker, then the temperature varies from +22 to + 24 degrees Celsius. Deviation from these indicators, both downward and upward, shorten the working day. If the temperature in your office is not higher than +18 degrees, the working day should last only six instead of eight hours. If the temperature is below +12 - you can, with a clear conscience, turn around right from the doorstep and go home. Article 157 Labor Code, for such forced absenteeism, you are still entitled to a salary.

But, as is often the case, there is an important nuance here. In your employment contract, the temperature norms may be different. Keep this in mind. Suppose your employment contract does not run counter to the norms of Sanepidnadzor. And the working day is legally (!) shortened for you. What if the employer is against it? Will you personally come into conflict with the employer? It is also doubtful that the employer will gladly let you go home as soon as serious colds strike. So… dress warmly.

If you work outdoors, article 109 of the Labor Code of the Russian Federation provides for special breaks for heating at low temperatures. These breaks are included in the total working time. You can find out more in the regulatory legal acts and in your employment contract, as well as in the Sanepidnadzor document “ Hygiene requirements to the microclimate of industrial premises.

If the air temperature exceeds +28 degrees, then the duration of the working day is reduced by an hour for every half a degree. Therefore, if in summer the temperature in the office is +32.5 degrees, you can not go to work. By the way, in Portugal in inclement weather, you can absolutely legally stay at home.

Marriage registry

If you are about to get married, you are entitled to up to 5 days of unpaid leave. However (at their discretion) the authorities can pay for these days. Your fiancé is also entitled to vacation days. According to Article 128 of the Labor Code of the Russian Federation, “an employer is obliged, on the basis of a written application from an employee, to provide leave without pay to employees in cases of the birth of a child, marriage registration, death of close relatives - up to five calendar days.”

My child

Don't discount the opportunity to go on maternity leave. Maternity leave- this is a minimum of 70 days of rest (if the first birth) before the birth of the child. Then - 70 days after the successful delivery of one child. If you have twins - it's already 110 days! And then - parental leave, which can last until your child is one year old.

Session

If you work and study at the same time, you can take study leave. study leave applies only to students of state universities and only officially employed. Keep in mind that this additional leave. You are also entitled to regular leave. According to article 173 of the Labor Code of the Russian Federation, freshmen and sophomores are entitled to 40 days during the session, starting from the third year - 50 days. For writing thesis 4 months are provided, and for passing state exams - a month. Unfortunately, employers are often reluctant to hire students.

Festive innovation

Last year, the deputies proposed to make the birthday officially a day off (paid). Given that many are trying to take the day off, this is a sound suggestion. According to the servants of the law, if an employee has a birthday, it knocks down the entire work process, there is excessive fuss, and even drunkenness. The bill proposed the following solution: if you decided to take a “legal” day off on your birthday, please be so kind as to go to work on one of the days of the New Year holidays. Moreover, the deputies even suggested a specific day when you need to go to work - January 5th. The fate of this bill is still unclear. Well, let's wait and see.

Illegal but effective

Personal request. If you need a day off, talk to your boss about how you will be coming to work an hour earlier during the week. And then take the day off. Most likely, they will go along with you.

Good reasons. The Labor Code provides for absence from work for good reasons. But it does not always interpret which reasons are valid and which are not. Suppose your husband took you to the hospital and therefore did not show up for work. Is this a good reason or not? Only the employer can know the answer to this question. Keep this in mind when you take time off from work.

Our advice:

Read your employment contract. Perhaps there are points in it that you can cling to. For example, there are organizations in which you can take an extra day off once a month, and on any working day. Why not take advantage of such a gift of fate?

In many companies, the so-called day off is common. You do not come to work, but you are obliged to work at home. All business matters, including business correspondence and phone calls remain within your control.

If you need to leave work, refer to a meeting with a client.

At the same time, do not forget to talk with the client at least by phone, because the management will ask you about the outcome of the negotiations.

Comment of legal adviser Vladislav Fedyanin:

If intermittently, annual leave as well as weekends and non-working public holidays everything is relatively clear, you should figure out in what other cases the employee has the right to take additional days of rest. There are the following grounds for legitimately receiving an additional day off.

With payroll:

overtime work;

work on a weekend or non-working holiday;

donation of blood and its components;

processing of working hours within the schedule of work on a shift;

care for disabled children.

Without pay:

granting leave without pay;

the employee is a parent (guardian, guardian, foster parent) working in the Far North and equivalent areas, having a child under the age of 16;

woman's work in the countryside.

According to article 152 of the Labor Code of the Russian Federation, overtime work is paid at higher rates. At the same time, at the request of the employee, overtime work instead of payment can be compensated by providing additional rest time, but not less than the time worked overtime. According to article 186 of the Labor Code, an employee is released from his/her labor duties on the day of donating blood and its components, as well as on the day of the medical examination associated with this. In addition, after each day of donating blood and its components, the employee is given an additional day of rest.

In addition to the above cases, other opportunities to take an additional day of rest may be prescribed in the employment contract with the employee. Thus, if a person at the time of hiring knows that in the process labor activity he will have to take time off from time to time, it is advisable to fix this possibility in the employment contract, preventing possible disputes in the future. The question of whether the employer will agree to this depends on the degree of his interest in the employee, the nature of the work, production needs and other factors.

Of course, in all of the above cases, the employee should follow all the necessary rules - submit an appropriate application addressed to the head of the company, agree on days off, etc. We must not forget that unauthorized absence from work is regarded as absenteeism (i.e. absence from the workplace without good reason), which entails disciplinary liability up to and including dismissal.

It is possible to dismiss an employee for absenteeism if he is absent from the workplace without good reason during the entire working day or shift or for more than four hours in a row. The employee is required to provide a written explanation of the reasons for his absence from work, on the basis of which the validity of these reasons is assessed. The refusal of the employee to give an explanation is not an obstacle to dismissal.

Reasons for dismissal for absenteeism

Since absence from work without good reason is recognized as absenteeism, it is important to determine which reasons can be recognized as valid and which cannot.

However, in any case, the decision of the employer to recognize the specific reason for the absence of an employee from work as disrespectful and, as a result, his dismissal for absenteeism can be verified in court (Determination of the Constitutional Court of the Russian Federation of 01.26.2017 N 33-O).

Valid reasons for absence from work

The Labor Code of the Russian Federation does not contain a list of valid reasons for the absence of an employee from the workplace. However, the following reasons, in particular, can be recognized as valid (Articles 142, 170, 186, 414 of the Labor Code of the Russian Federation; clause 6 of the Review judicial practice of the Supreme Court of the Russian Federation for the III quarter of 2013, approved. Presidium of the Supreme Court of the Russian Federation on February 5, 2014; Determination of the Moscow City Court dated October 22, 2010 in case No. 33-33169):

1) temporary incapacity for work (at the same time, untimely submission to the employer of documents confirming the fact of temporary incapacity for work cannot serve as a basis for recognizing the reasons for the absence of an employee from work and his dismissal for absenteeism as invalid);

2) performance of public or state duties;

3) donation of blood and its components, as well as the performance of a related medical examination;

4) participation in a strike;

5) detention;

6) emergencies that caused transport problems, such as, for example, flight cancellation or delay;

7) suspension of work due to a delay in the payment of wages for more than 15 days (upon notification of the employer in writing).

As confirmation of the reason for his absence, the employee can submit to the employer a certificate of incapacity for work, a subpoena, a certificate from a medical institution, from a transport organization.

Irrelevant reasons for absence from work

Dishonest reasons for absence from the workplace may, for example, include (Appeal rulings of the Moscow City Court of February 18, 2016 in case N 33-2890 / 2016, of October 4, 2016 in case N 33-32613 / 2016):

1) passing a medical examination (obtaining a medical consultation) in the absence of a issued sick leave;

2) time off for the days worked during the vacation period, if the recall from the vacation was not issued and there are no documents confirming the need to go to work during the vacation period;

3) filing an application for parental leave, if the issue of granting such leave has not been resolved by the head;

4) finding of the spouse on inpatient treatment.

Application of disciplinary action in the form of dismissal

Before applying a disciplinary sanction in the form of dismissal, the employer must request a written explanation from the employee about the reasons for his absence from work. If, after two working days, the employee has not provided an explanation, the employer is obliged to draw up an act on this.

The employer has the right to dismiss the employee for absenteeism if the employee refuses to provide written explanations about the reasons for absence from the workplace, as well as documents confirming these reasons. In this case, a disciplinary sanction is applied no later than one month from the date of detection of absenteeism, not counting the time the employee was ill, being on vacation, as well as the time required to take into account the opinion of the representative body of employees (parts 1 - 3 of article 193 of the Labor Code of the Russian Federation).

If the employee has provided an explanation and supporting documents, then the question of whether the reasons for the absence are valid is at the discretion of the employer, but can be challenged by the employee in court.

The order (instruction) of the employer on the application of a disciplinary sanction in the form of dismissal is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then an appropriate act is drawn up (part 6 of article 193 of the Labor Code of the Russian Federation).

When imposing a disciplinary sanction, the severity of the misconduct committed and the circumstances under which it was committed are taken into account (part 5 of article 192 of the Labor Code of the Russian Federation).

At the same time, according to the Supreme Court of the Russian Federation, the employer must assess the reasons for the absence of the employee and apply a disciplinary sanction in proportion to his misconduct, taking into account the previous behavior of the employee (Determination of the Supreme Court of the Russian Federation of March 30, 2012 N 69-B12-1).

It should be borne in mind that in case of violation of the procedure for applying a disciplinary sanction, in particular, if the employer did not request a written explanation from the employees on the fact of absence from the workplace, the dismissal of such employees will be declared illegal. However, if the employer took actions to demand explanations from the employee, for example, by sending a telegram to his place of residence, which he did not receive for reasons beyond the employer’s control, then the dismissal of the employee is lawful (Appeal rulings of the Moscow City Court dated August 24, 2016 in case N 33- 27314/2016, dated July 28, 2014 in case No. 33-29793/14).

Dismissal appeal

A disciplinary sanction may be appealed by the employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes, including the court (part 7 of article 193, article 382 of the Labor Code of the Russian Federation).

If the employee was nevertheless fired, and he considers the reasons for the absence from work to be valid, then he can apply for the protection of his rights to the district court at the location of the employer, his place of residence or the place of execution of the employment contract. claim as arising out of labor relations It is not subject to state duty (Articles 24, 28, Parts 6.3, 9 of Article 29 of the Code of Civil Procedure of the Russian Federation; Subclause 1 of Clause 1 of Article 333.36 of the Tax Code of the Russian Federation).

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Are there valid reasons for being absent from work? Some employers joke that only death counts as a valid reason for absenteeism. But often absenteeism is due to illness, a wedding or an exam at the university. Let's figure out what absenteeism is and what reasons can be considered valid.

What is considered truancy

Absenteeism is the absence of an employee from work for more than 4 hours in a row, but on condition that it was deducted lunch time which is due to man by law. A period of absence less than the specified period must be recognized.

Walks fall into two categories:

1. Without good reason. Such absenteeism can be a reason if the employer does not assign another punishment to the employee.
2. For a good reason, when a person was forced to be absent.

In practice, situations often arise when the employer does not recognize the arguments of the employee as valid and dismisses him. Then the employee can go to court and appeal the decision.

Analyzing the circumstances of modern life, it is possible to identify some valid reasons for the absence of an employee.

Personal reasons

1. Illness or injury.

Absence from work is due to the health of the employee, when a person goes to the hospital, but does not start a sick leave. Many people refuse sick leave in order to save wages. In this case, the employee must provide a certificate from the doctor, which will indicate the date of admission.

2. Medical examination.

If a person works in grocery store, children's institution, public catering, in the military, fire or rescue service, then a medical examination is a mandatory procedure, and the absence of an employee cannot be considered absenteeism. But if an employee appointed a medical examination for himself and did not bring a certificate from a doctor, then this can no longer be considered a good reason.

If the employee refused to write out sick leave or was on a medical examination, he must provide a certificate from a doctor.

3. Illness of a child or other family member.

This fact must be confirmed by a certificate from a doctor or take sick leave to care for a child.

4. Unexpected breakdown in the field of utilities.

These reasons include a gas leak, a break in heating or water pipes, an electrical short circuit, or a fire.

5. Participation in government processes.

The reason for absenteeism is considered valid if the employee is in court on a subpoena, for example, as a plaintiff, witness, juror or representative of the election commission. According to Art. 46 of the Constitution of the Russian Federation, such a reason is considered valid, because a person has the right to personal participation in court.

6. Delayed salary.

A delay in salary payments for more than 15 days can also be a good reason. The employee has the right not to go to work, but must notify the employer in writing. According to part 2 of Art. 142 of the Labor Code of the Russian Federation, the absence may continue until at least part of the salary is paid.

Reasons for absenteeism provoked by an external factor

The circumstances for absenteeism may not be related to personal reasons. Everything that can be attributed to force majeure justifies the absence of a person from work for 4 hours or more.

Force majeure situations:

1. Breakdown of the elevator in the house - the employee was stuck in the elevator and could not come to work.
2. Traffic accident.
3. Transport malfunction, if it is not possible to transfer to another bus, trolleybus, etc.
4. Obstacles of a natural nature (flood, ice, strong gusts of wind).
5. Epidemiological situation in the settlement and compulsory vaccination.
6. Flight delay, which creates barriers to timely return home from vacation, business trip or other trip.
7. Lack of tickets at the box office of any road, water or air services.

If an employee has confirmation that absenteeism occurred due to serious circumstances, then you cannot fire him.

Reasons for absenteeism that are known in advance

Sometimes the reason for absenteeism may be other circumstances that arose the day before or were known in advance. Such reasons include a wedding, the birth of a child, or the death of a close relative.

Also, the employee has the right to receive additional days off, which are not paid by the employer and cannot be considered absenteeism. But the employee is obliged to warn the manager in writing about these circumstances, if this is not possible, then you can simply call. According to Art. 128 of the Labor Code of the Russian Federation, the period of absence from the workplace cannot exceed 5 days.

The employee has the right to receive additional days off, which are not paid by the employer and cannot be considered absenteeism.

Not always absenteeism happens at the will of the employee. Sometimes a person is forced to stay late or not come to work at all due to unforeseen circumstances. But if there is a justification for absenteeism and it is respectful, then you do not have the right to exceed your authority and deprive the employee of work. Before publishing, give the subordinate the opportunity to justify himself.

The labor legislation of the Russian Federation provides the employer with a number of tools for regulating relations with employees. One of them is the application of a disciplinary sanction - dismissal - for violation of labor discipline, namely absenteeism. However, the application of this sanction against an employee requires compliance with the procedural order and the legality of the grounds.

We all understand that dismissal "under the article" is not the most humane method.

But if an employee systematically violates the rules of internal work schedule- skips work. And all possible options solutions, such as dismissal or, no longer help.

That leaves only 1 option - the dismissal of the employee for absenteeism. Today we will tell you how to do it correctly and legally.

What is a walk?

Important! It should be borne in mind that:

• Each case is unique and individual.
• Careful study of the issue does not always guarantee a positive outcome of the case. It depends on many factors.

To get the most detailed advice on your issue, you just need to choose any of the proposed options:

Sometimes the employer or employee interprets the concept of "truancy" in their own way. For some, this is a failure to appear at work without warning, for others being late, and someone believes that absenteeism is a refusal to do extracurricular work. To resolve disputes, you need to study what the law says. The legal definition of absenteeism is given in Art. 81 of the Labor Code of the Russian Federation.

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

To qualify for absenteeism, the following conditions must be met:

• absence of 4 or more hours;
• disrespectful reason;
• month of misconduct.

Therefore, before dismissing an employee for absenteeism, it should be established that he was really absent from the workplace, correctly determine the period of his absence and the reason why the employee did not come to work, or left the workplace before the end of the shift.

What is absence from work?

The procedure for dismissal for absenteeism clearly regulates the condition - absence from the workplace. But what is considered a workplace? An office, company territory or a chair on which an employee sits while working?

In this regard, one should first study job description and employment contract with the employee, as well as collective agreement, if available. Additionally, other local acts (orders, instructions, regulations) can be used that determine the “workplace” for a particular employee.

For example, in an instruction or order for a worker, it may be noted that his workplace is a specific number of a machine or workshop. In this case, absenteeism will be considered the time that the employee spent outside the workshop or not at the machine.

If there is a clear concept of what is considered a workplace, in local acts or labor agreement No, you need to be guided by Art. 209 of the Labor Code of the Russian Federation, which determines that the workplace is the territory where the employee needs to arrive to perform the assigned functions. That is, the entire territory of the company.

Time away from work

The law gives the employer the right to dismiss an employee for absenteeism if the employee has been absent for 4 or more hours. It means that, if an absence of exactly 4 hours or less is recorded, then you cannot be fired for absenteeism. Yes, you can apply other disciplinary measures, such as a reprimand, but not dismissal. Having information on how to fire a person for absenteeism, employees sometimes use this four-hour period, which does not allow them to consider absence as absenteeism.

How is time off work calculated?

Further, during the period of absence, the lunch break is not included. Reason - Art. 108 of the Labor Code of the Russian Federation, excluding the duration of the break from working time. Therefore, if, for example, an employee came to work at 14:20, but was supposed to be at 10:00, while the break is 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, you cannot sum up periods of absence over several days or shifts.

• 1 o'clock 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 absenteeism, subject to other procedural requirements.

Good reasons for absenteeism

The legislator for the current year 2020 does not define in any article of the Labor Code what are valid reasons for absenteeism. It is believed that this fact must be established within the framework of the proceedings, that is, separately in each individual case. In practice, a valid reason is one that did not arise at the will of the employee.

That is, they recognize as respectful:

• sickness of an employee;
• illness (death) of a close relative;
• emergencies;
• road accidents or incidents;
• housing and communal accidents;
• other.

Of course, good reasons for absenteeism must be documented or otherwise confirmed, for example, by the testimony of witnesses. Documents must be certified general order. For example, get a medical certificate, a copy of the accident report.

The law also does not consider absence of an employee with the knowledge of the manager to be absenteeism. That is, if an employee "takes time off", then this is not absenteeism. But, as with other reasons, the fact of management permission must be proven.

Oral permission alone is not enough, because it will be impossible to prove it. In practice, the employer can take advantage of this "loophole". Therefore, it is important to know what is absenteeism without a good reason, absence from the workplace even with the permission of the manager, if there is no written confirmation of permission.

Step-by-step procedure for dismissal for absenteeism

The step-by-step instruction for dismissal for absenteeism provides for the following procedure for going through all the stages: from committing a misconduct - absenteeism - to the final entry in work book.

It is important to comply with all procedural formalities in order to avoid litigation. After all, if the procedure for actions and paperwork is violated, then the dismissal can be declared illegal in court, the employee can be reinstated, and the employer is required to pay compensation.

So the procedure for how to properly dismiss an employee for absenteeism:

1. Document the fact of the commission of absenteeism. This can be done by composing the employee's absences. The act is drawn up in the presence of witnesses (2-3 people). It is also permissible if the immediate supervisor submits a report on the commission of a misconduct by subordinates to higher authorities.
2. . An explanatory note is drawn up only in writing. Oral explanations are not suitable. Deadline - 2 days.
3. Based on the results, either an internal investigation is closed, or an act is drawn up. Also, in the absence of explanations from the employee within 2 days, an appropriate one is drawn up (Article 193 of the Labor Code of the Russian Federation).
4. A decision is made to apply the penalty. The right to dismiss for absenteeism is not an obligation, that is, the employer may not dismiss the employee, but apply a different type of penalty.
5. A dismissal order is being prepared.
6. Familiarize the employee with the order.
7. Document the dismissal with an entry in the work book.

The nuances of actions during a long absence

Particular attention deserves the situation when a long absence is made. When dismissed for a long absence step-by-step instruction almost the same as with the usual, that is, discrepancies:

1. Fix the absence: compose , enter data into .
2. Compose about the need to appear and provide explanations.
3. Send a notice to an employee at a known postal address.
4. After receiving notification of delivery, wait 2 days + the period required for the delivery of correspondence.
5. In case of failure to provide explanations and confirmation of the fact of receipt of the notification, draw up an act.
6. Take action to find out the reasons for the absence if the notification has not been received. This step is optional, but recommended to avoid problems in a possible lawsuit after. You can make calls to the relatives of the employee, get their testimony.
7. Write about the activities carried out, recording the information received. Optional.
8. Design .
9. Draw up an act on the impossibility of familiarizing the employee with the order.
10. Enter the information in the work book.
11. Perform payment settlement.
12. Send a notice to the employee about the need to obtain a work book.

Due to the fact that the law establishes a period for disciplinary punishment of 1 month, it is necessary to carry out all actions as quickly as possible. Given that letters are returned to the sender after a month of storage, we recommend sending a telegram asking for clarification.

It would also be reasonable to draw up daily acts on the absence of an employee during the entire period of absenteeism, or record this in another way. accessible way, for example, marks in the arrival-departure journal in order to follow the procedure for dismissal for absenteeism without a good reason.

Registration of procedural papers

The first document that needs to be prepared is confirmation of the fact of absence. The most common option is to draw up an act, although a report can also be used, based on the results of which an internal investigation is opened. After requesting an explanatory note, you must wait two business days. Immediately on the day of absenteeism, it is impossible to issue an order to dismiss a sample for absenteeism and terminate the employment contract.

As part of the investigation, it may be decided to carry out dismissal for absenteeism without good cause if the employee refused to provide an explanation why he was absent. Or he did not confirm the documented reason, even if he considers it valid. This should be documented.

date of dismissal

If there is a dismissal for absenteeism, then what day to dismiss? Difficult question. To make a decision, one must be guided by Art. 84.1 of the Labor Code of the Russian Federation. According to its content, the last working day of the employee is the date of his dismissal, if for other reasons he did not have a place. In the case of absenteeism, the last day when the employee worked is the previous day of absenteeism, provided that a good reason has not been confirmed.

Therefore, if absenteeism was one-time and the employee subsequently appeared and gave explanations that were regarded as an unexcused reason, the date of dismissal and the order for dismissal for absenteeism will correspond to the day the explanatory note was received. if absenteeism is of a long nature, the daily absences of the employee are confirmed by acts and time sheets, and explanations have not been received, then dismissal is allowed on the last working day. However, there will be no violation and dismissal, dated the day the final act was drawn up on the lack of explanations.

Registration of a work book

Entering data into the work book is the final stage of dismissal. If you don’t know or are not sure under which article they are dismissed for absenteeism, then article 81 of the Labor Code of the Russian Federation regulates dismissal for absenteeism. Information is entered into the employee's work book on the basis of an order. The registration data of the order itself is written in the column "Name and date of the document". Sample entry in the labor on dismissal for absenteeism:

First, the number of the serial record is indicated, the deadline is not missed. Next, the date of entering information is prescribed, which must coincide with the date of dismissal and the issuance of the order. It is further indicated in words in labor record about dismissal for absenteeism (). After that, the signature and the name of the position of the responsible person are affixed. The record is certified by the seal of the company.

Sometimes the employer can terminate the contract and dismiss not for absenteeism, but if the employee is recognized as dead or missing. This requires a court decision (here in detail about), fixing this fact. The employer can initiate the process himself, or the claim will file another interested party e.g. a relative.

The workbook entry will look like this:

Special cases of dismissal for absenteeism

Not every absence from work is regarded as absenteeism, even if it has almost all the signs. For example, it will not be considered absenteeism if the employee does not wish to go to work on a non-working day for himself. However, there are exceptions to this rule, the same as for recall from vacation. It is permissible to involve employees in work on a day off if this is required for recovery after accidents or emergencies.

Dismissal and sick leave

It is unacceptable to carry out a dismissal if an employee is ill. If the employee was hastily fired for absenteeism, and he brought sick leave in the form of an explanation of the reason, then such an employee must be reinstated, since the dismissal is unlawful. However, if the fact of hiding the illness and the presence of sick leave was established, then during the trial the court may take the side of the employer, believing that the employee is abusing his rights and infringing on the rights of the employer (Resolution of the Supreme Court of the Russian Federation).

In the lawsuits, citizens explain the situation as follows: “I was fired for absenteeism while I was on sick leave.” As proof, they provide a certificate of incapacity for work. This is not enough, it is necessary to prove that the employer was notified that the employee fell ill. Moreover, a citizen may be denied satisfaction of the claim if he refused to give explanations. Of course, if he could do it for objective reasons.

Can a pregnant woman be fired for absenteeism?

Employers are often willing to fire a woman in position. Especially if she makes mistakes. However, the question is: "How to fire a pregnant woman for absenteeism?" - has a simple answer: "No way."

The Labor Code expressly prohibits any grounds for terminating an agreement with a pregnant woman at the initiative of the employer, except for the complete liquidation of the organization (Article 261 of the Labor Code of the Russian Federation). Can a pregnant woman be fired under the article if she has committed a misdemeanor? Yes, but only on the basis of Art. 336 of the Labor Code of the Russian Federation, which regulates the application of sanctions to employees of educational institutions.

Lawyer of the Board of Legal Protection. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other normative documents to regulatory authorities.

Explaining this with valid reasons, for example, traffic jams, visiting a hospital due to poor health, etc. The problem for the parties in such cases is that the Labor Code of the Russian Federation does not contain the concept of validity of the reasons for being late or not coming to work ... Hence , in resolving such disputes, it remains only to focus on judicial practice. What reasons for absence from work in judicial practice are recognized as valid?

1. Transport problems

When justifying delays, employees refer to traffic jams, breakdowns in their personal car, or problems with public transport.

The arguments about traffic jams are treated negatively by the courts, and the imposed disciplinary sanctions are not canceled with the following motivation. Being in a “traffic jam” is a disrespectful valid reason for being late for work, since the employee is obliged to choose such a time to leave for work in order not to be late for the start of the working day. This position also applies to absenteeism, when the employee was absent for more than four hours from the beginning of the working day.

At the same time, transport problems can be taken into account in conjunction with other circumstances.

The death of a relative is also not a valid reason for absenteeism. In this case, the employee has the right to take a vacation without pay in accordance with Art. 128 of the Labor Code of the Russian Federation.

There is a well-known judicial practice when an employee verbally agreed to replace another employee, but did not come to work on time. . Employer . The court reinstated this employee because the employer did not familiarize her with the order to change the work schedule, which means that this day remained a day off for the employee. In addition, the employee notified the employer about the validity of the reasons for the absence - his car was taken to the impound lot along the way.

The delay of the city bus is also not recognized by the courts as a good reason. In their decisions, the courts indicate Violation of the bus operation - not a good reason, the employee can choose a different route or transport and arrive at the workplace on time.

As in the situation with traffic jams, before imposing a disciplinary sanction, the employer must analyze the circumstances of the absence, the real possibility of the employee to be in time for work, his previous behavior.

Sometimes workers refer to the fact that they did not get to work because there was no money. But the courts also do not consider the lack of funds for travel as a valid reason for absenteeism or being late. The blocking of a credit card cannot be regarded as a good reason for late arrival at the workplace.

However, if the employee refers to transport problems, the employer should analyze the following points:

1. Is this situation typical for this time of day for this area. Typical, for example, are plugs in major city, traffic congestion during rush hour;
2. Could the employee avoid this situation by planning a different route to work, urgently transferring to another transport, “borrowing” money, etc.

If the answers are yes, then the reason for the absence is not valid. At the same time, the employer must also take into account the impact of force majeure circumstances. For example, the reason is valid if the employee was late for work, because a car got under the rails of the electric train. The movement of trains along the branch was paralyzed for some time, and there was no opportunity to leave by other transport.

Another common reason for workers to be late is the weather conditions during the autumn-winter period, mainly on days of snowfall or heavy rains and the transport problems caused by them, as well as health concerns due to wind or cold.

The courts consider that weather conditions in themselves do not qualify as force majeure. “Unfavorable weather conditions are not valid reasons, as they do not prevent the employee from leaving home for work in advance, taking into account the weather conditions. The employee must take all possible measures and arrive at work on time. But in these cases we are talking about the fact that it was actually possible to get to work on time. Serious weather anomalies, emergencies such as hurricanes, heavy snowfalls are good reasons for absence.

The employer should remember that if the employee was absent without good reason, but the employer, the court will satisfy the requirements for reinstatement. Average earnings in such cases, it is collected from the date of issuance of the dismissal order (paragraph 41 of the resolution of the Plenum of the Supreme Court of March 17, 2004 No. 2).

Thus, if an employee refers to bad weather, the employer should analyze the following points:

1. was it really during this period bad weather whether it is anomalous for this season and climate zone;
2. how bad weather interfered with getting to work;
3. whether the employee could build a route and plan the time in such a way that, taking into account reasonable costs of time and effort, get to work on time.

Evidence of bad weather can be certificates from meteorological services, testimonies, media reports.

Another common reason for being late and not showing up for work is communal troubles in the employee’s living quarters: a pipe burst, neighbors flooded, and the heating was turned off. Whether this is a reason to skip or be late depends on whether the circumstances were planned or force majeure.

For one of these children, the employer fired an employee who did not come to work due to repairs to the heating system in the house. The court recognized the dismissal as lawful, since the plaintiff did not provide evidence that the work was of a force majeure, emergency nature. On the contrary, from the certificates provided, it follows that the work was planned, the worker knew about their implementation in advance and could plan how to provide specialists with access to the apartment with the help of relatives and acquaintances. The employee could also write an application for time off or one-day leave. However, she did neither.

In another case, an employee left in the middle of the working day for two hours. The employer reprimanded him. The court declared the recovery unlawful, since the departure from work was caused by a pipe break. The need for the employee to leave the workplace was caused by an emergency in the apartment, which could lead to a flood of neighbors. That's a good excuse for being away from work...

From the above examples, it follows that the courts, when answering the question about the respectfulness of absenteeism due to public works examine three points:

1. whether the situation was an emergency;
2. Was emergency repair required?

Another common reason workers cite for absenteeism is feeling unwell and going to the doctor.

Referring to this circumstance, employees do not always provide sick leave.

Visiting a doctor, such as a dentist, for an examination without emergency indications is not a valid reason for absence from work.

But when an employee urgently goes to the doctor and after this visit the employee is issued a sick leave that was provided to the employer, the visit to the doctor is recognized by the courts as a good reason for not showing up for work.

At the same time, it should be borne in mind that the subsequent issuance of a certificate of incapacity for work is not necessary in order to consider going to the doctor as a valid reason for absenteeism or being late.

The absence of a sick leave certificate when confirming the circumstances of seeking medical help does not give grounds to attribute the absence of an employee to absenteeism.

Visiting a doctor for examination without emergency indications does not apply to good reasons for absence from work. Evidence of a doctor's visit is

1. a doctor's note;
2. entry ticket (in the absence of a certificate, the ticket does not confirm the visit);
3. response of the medical organization to the request of the court;

The employer also has the right to apply with a reasoned request to medical organization for confirmation of the fact of the employee's admission to the hospital.

However, there is a practice when the courts consider the sick leave certificate to be the only reason for absence from work on the grounds that the employee’s appeal to medical institution in itself does not indicate the impossibility to perform labor duties and does not confirm the respectful absence from the workplace throughout the working day.

Thus, when an employee substantiates his absence from work by contacting a doctor, the courts evaluate:

1. availability of evidence of seeking medical assistance;
2. what is the reason for the appeal: is it urgent or planned;
3. whether the employee was diagnosed with a disease and whether it caused the loss of disability (subject to a long absence from work);

4 whether the employee has taken steps to notify the employer of the reason for the absence.

GENERAL CRITERIA FOR RESPECTABILITY OF AN EMPLOYEE'S ABSENCE AT WORK

From the above judicial practice, we can formulate the following criteria for the validity of an employee's absence from work, which can be taken into account when deciding on the validity of an employee's absence from work:

1. Did the employee have the opportunity to take time off from the employer in advance, or to inform him of his absence in a timely manner, if so, did he do it.
2. Is the reason for the absence of an emergency (force majeure) nature.
3. Could the employee, with due diligence and conscientiousness, avoid the reasons that influenced the delay or absence from work.