Questions were answered by E.Yu. Zabramnaya, lawyer, PhD n.

Dismissal for absenteeism: there is no person - but there is a problem

It is common knowledge that the main asset of any company is its employees. However, not all employees understand that their job duties must be performed in good faith. And persistent violators of labor discipline, such as absentees, become a headache for the employer.

Absenteeism- is the absence of an employee from the workplace without good reason n:

• <или>throughout the working day, if the working day is 4 hours or less;
• <или>more than 4 hours in a row, if the working day is more than 4 hours.

Workplace- a place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer I Art. 209 Labor Code of the Russian Federation.

Everyone knows: absenteeism can get you fired. b subp. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation. But in practice, difficulties arise: can an employee’s absence from work in a particular situation be regarded as absenteeism and punished for it?

What to do when an employee simply stops going to work one day? How to properly record absenteeism?

Before moving on to specific issues, let's consider the general procedure for holding people accountable for truancy.

How to record absenteeism and how you can punish for it

Let's start with the fact that absenteeism is a gross violation of labor duties by an employee. Therefore, you can fire even someone who skipped work once. h subp. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation. This distinguishes absenteeism from less “severe” violations, such as being late for work.

Although even in case of absenteeism, milder sanctions than dismissal may be applied to the employee - a reprimand and a reprimand R Art. 192 Labor Code of the Russian Federation.

Regardless of what punishment you choose, you must:

• record the fact of the employee’s absence from work;
• find out the reason for this absence.

How to record an employee's absence from work

The fact that an employee is absent from work is recorded:

How to draw up an absence from work report, see: 2010, No. 23, p. 74

• <или>data from the electronic system installed at the checkpoint (checkpoint);
• <или>a report (official) note from the truant’s immediate supervisor;
• <или>an act of absence from work, which is usually drawn up by an employee of the HR department or the immediate supervisor of the absent employee in the presence of two witnesses - colleagues of the truant.

How to establish the reason for an employee’s absence from work

After recording the fact that an employee is absent from the workplace, you need to figure out what caused this absence. After all, an employee may not come to work for a good reason, for example, in case of illness or late return to work from vacation due to a flight delay.

For more information on the procedure for bringing an employee to disciplinary liability, see: 2010, No. 23, p. 14, 74

If an absent employee comes to work the next day or a few days later, ask him for a written explanation of the absence. Moreover, it is better to do this in writing, so that in the event of a legal dispute you have evidence that you requested an explanation. After receiving explanations, you will understand whether the employee committed absenteeism or had valid reasons for absence from work e Art. 193 Labor Code of the Russian Federation; Clause 2 of the motivational part of the Determination of the Constitutional Court of the Russian Federation dated October 17, 2006 No. 381-O.

We warn the manager

Explanations about the reasons for absence from work must be requested in writing and given to the employee 2 working days to provide them.

Please note: the employee is given 2 working days to provide explanations. This period is calculated from the next day after you request an explanation from the employee. I Art. 193 Labor Code of the Russian Federation. For example, if you requested an explanation on April 26, then the above two-day period will begin to run on April 27. If the employee does not give an explanation within the specified period, draw up a report on their failure to provide And Art. 193 Labor Code of the Russian Federation.

An example of a notice of the need to provide written explanations and an act of failure to provide written explanations can be found in the publication “General Ledger. Conference hall", 2011, No. 3, p. 25-26.

If an employee does not show up for work for a long time for a reason unknown to you, take the same action. To Art. 193 Labor Code of the Russian Federation:

1) send by mail a valuable letter with a list of attachments and a notification of delivery to the employee’s address requesting a written explanation for the fact of his absence. Then, in the event of a legal dispute with an employee, you will have proof that you tried to get an explanation;

2) draw up daily reports on the employee’s absence from the workplace in the presence of witnesses;

3) record in the work time sheet according to form No. T-12 or T-1 3 failure of the employee to appear for unknown reasons (until the circumstances are clarified). To do this, put in the timesheet:

• <или>letter code "NN";
• <или>digital code "30".

Do this until you find out the reason for the employee’s absence or until management decides to fire him.

Your further actions depend on how the situation develops.

SITUATION 1. The employee showed up for work some time later. Request an explanation from him and, depending on whether he had a valid reason for his absence or not, decide whether to hold him accountable.

SITUATION 2. You have received an explanation from the employee by mail, from which it follows that he has no valid reasons for his absence. But he doesn't go to work. You have the right to issue an order to hold him accountable for absenteeism, up to and including dismissal. I subp. “a” clause 6, part 1, art. 81, articles 192, 193 of the Labor Code of the Russian Federation.

SITUATION 3. You have not received an explanation from the employee; he still does not come to work. But you received a notification by mail that he had received your demand for an explanation. Some employers fire the employee in this situation. They are guided by the fact that an explanation has been requested from the employee and the employee himself is to blame for not providing it. But such actions are associated with certain risks. After all, there is a possibility that the notice was not given to him, but to one of the family members. For example, the employee himself may be in the hospital, and the correspondence is received by his family, who are not obliged to give you an explanation. Therefore, it is prudent in such a situation to continue to make attempts to contact the employee until receiving any explanation from him.

SITUATION 4. The employee does not show up for work, does not send any explanations, and you have no confirmation that he received your letter. Or the letter was returned, never received by the addressee. This is the most difficult situation in which in practice they do this:

• <или>continue to draw up daily reports on the employee’s absence from work and record absences in the time sheet, and until the reasons for the employee’s absence are clarified, they do not issue an order to dismiss him. The majority does this, guided by the fact that the reason for the employee’s absence is not known, which means that the employer is not 100% sure that the employee is absent (that is, absent without good reason);
• <или>lose patience and fire for absenteeism if the employee’s absence is too long, the employer’s repeated attempts to contact him are unsuccessful and another employee needs to be hired in his place. Courts often agree with such dismissal in absentia Determination of the Moscow City Court dated November 12, 2010 No. 33-32370.

But sometimes the courts note as a violation of the dismissal procedure that a notice of the need to give an explanation for absence from work was sent to the employee, but the postal item was not delivered to the employee, but was returned to the employer Yu. Although, as practice shows, if this is the only violation, then it is unlikely that the employee in such a situation will be reinstated at work.

We warn the manager

It is forbidden dismiss an employee immediately after he fails to show up. We need to ask him for an explanation. Otherwise, he may later be reinstated at work by the court, and then you will have to pay him the average salary for the entire period of forced absence.

Remember, there is always a chance that your employee will return and provide you with a document confirming the valid reasons for his absence and the impossibility of notifying the employer in a timely manner. Then you will have to cancel the order to dismiss the employee.

If you do not do this yourself, then when the former employee is reinstated by the court, the court will oblige you to pay him the average salary for the period of forced absence A Art. 394 Labor Code of the Russian Federation; paragraph 41, paragraph 62 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2. You will not have to pay for the period of absence of the employee from work before you issue a dismissal order, since he did not work. The exception is when he has sick leave.

If, however, you have already hired a new one to replace the dismissed employee, and the court reinstated the dismissed T Art. 394 Labor Code of the Russian Federation, then a new employee hired for his position will have to:

• <или>transfer to another job that corresponds to his qualifications, or to a lower position (lower paid job), which he can perform taking into account his state of health;
• <или>if there are no vacancies or if the employee does not agree to the transfer, terminate the employment relationship in connection with the reinstatement of the employee who previously performed this work by the court at clause 2, part 1, art. 83 Labor Code of the Russian Federation. Upon dismissal, the new employee will need to pay severance pay in the amount of two weeks' average earnings A Art. 178 Labor Code of the Russian Federation.

If, in connection with the appearance of an absent employee, you decide yourself (without court) to cancel the order of his dismissal and provide him with his previous job, then you will have to negotiate with the new employee replacing him (unless you hired him under a fixed-term employment contract):

• <или>about his transfer to another job at Art. 72.1 Labor Code of the Russian Federation;
• <или>on termination of an employment contract by agreement of the parties n Art. 78 Labor Code of the Russian Federation.

How to record absenteeism on a time sheet

If you are convinced that the employee was absent, be sure to adjust the data on the time sheet. Remember that the time sheet is one of the most important documents confirming the employee’s absence from work and the reason for this absence I Determination of the Leningrad Regional Court dated September 15, 2010 No. 33-4513/2010.

You need to correct the letter code “NN” (or digital code “30”) originally entered on the report card to the absenteeism code. This can be done in two ways:

• <или>just cross out the code “NN” (or “30”) on the report card and write “PR” (or the digital code “24”) at the top. These corrections must be certified by the persons responsible in the company for maintaining timesheets and personnel records, as well as by the head of the structural unit in which the absentee works, indicating the date the correction was made. th clause 5 art. 9 of the Federal Law of November 21, 1996 No. 129-FZ “On Accounting”;
• <или>in addition to the main time sheet drawn up for all employees, where the absentee during periods of absence is marked “NN” (or “30”), draw up a corrective time sheet exclusively for this employee. And already in this report card for the days of absenteeism, enter the code “PR” (or “24”). Attach the corrective time sheet to the main time sheet.

During what period can an order be issued to prosecute for truancy?

Absenteeism, like any other disciplinary offense, can be punished b Art. 193 Labor Code of the Russian Federation:

• within a month from the date of its discovery, not counting the time the employee was ill and on vacation;
• within 6 months from the date of its commission.

For more information about the timing of disciplinary sanctions, read: 2010, No. 23, p. 16

When an employee does not show up for work for a very long time, management may fear that the time limit for applying disciplinary sanctions for absenteeism will expire.

No worries. The period calculated from the date of discovery of absenteeism will begin to run not from the 1st day of the employee’s absence from work, but from the day when you became aware that the employee was absenteeism T.

How to file a dismissal for absenteeism

In case of dismissal for absenteeism, an order to terminate the employment contract is issued according to the unified form No. T-8 approved Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1. In the order, do not forget to state the circumstances of the absenteeism committed by the employee, indicating the dates of absenteeism A Determination of the Moscow City Court dated November 25, 2010 No. 33-35148, and in the column “Base (document, number, date)” list all documents drawn up as part of the procedure for bringing an employee to disciplinary liability:

• certificates of absence from work;
• reports (official) notes;
• a written explanation from the employee or an act of refusal to give an explanation.

You can find the texts of the court decisions mentioned in the article: section “Judicial Practice” of the ConsultantPlus system

The dismissal order must be presented to the employee against signature. And if the order cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it upon signature, a note about this must be made on the order m Art. 84.1 Labor Code of the Russian Federation.

An entry in the work book upon dismissal for absenteeism is drawn up as follows.

If the employee is not at work on the day of termination of the employment contract, send to his home address a notice of the need to appear for a work book or agree to have it sent by mail e Art. 84.1 Labor Code of the Russian Federation. Until you receive written instructions on what to do, keep the work book with you.

Now let's move on to the questions from our readers.

Unauthorized going on vacation - absenteeism

T.A. Ivanova, Perm

The employee was on sick leave for several months, and then wrote an application for annual leave. We have no grounds for granting him leave at this particular time (that is, not according to the vacation schedule). Without waiting for a response from management, he stopped going to work. Do we have the right to register his absence from work as absenteeism?

: Yes. As follows from your situation, the employee went on vacation without permission, that is, absenteeism l Art. 192, sub. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation; ; Ruling of the Ryazan Regional Court dated April 25, 2007 No. 33-580.

By the way, absenteeism is also the unauthorized use of time off by an employee. The exception is cases where the employer was legally obliged to provide the employee with rest time, for example, time off on a certain day, but did not provide it. For example, he refused to provide an employee with a donor day the day after the employee donated blood, although according to the Labor Code of the Russian Federation he was obliged to do this b subp. “d” clause 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2; Rulings of the Moscow City Court dated October 28, 2010 No. 33-30782, dated October 14, 2010 No. 33-30069, or refused to provide leave, although according to the schedule the employee should have gone on leave at that particular time.

Unregistered maternity leave is also absenteeism

HEDGEHOG. Goncharova, Balabanovo

After completing maternity leave (in 2008), the employee did not go to work and did not inform the employer about the birth of the child. After giving birth, I did not take out maternity leave. In 2011, she sent a letter in which she asked to be given leave without pay from March 7, 2011 to April 15, 2011 inclusive. The child probably turned 3 years old on March 7, 2011.
Is it possible to fire this employee?

: Can. If the employee did not exercise her right and did not take out maternity leave A Art. 256 Labor Code of the Russian Federation, then she is most likely playing truant. As follows from the question, then she also went on leave without permission without pay, that is, she again committed absenteeism.

But before you fire an employee, ask her for an explanation of the reasons for her absence from work for 3 years. And register your truancy as required.

You cannot fire an employee for refusing to interrupt a vacation.

HELL. Starikov, Moscow

The employee, in agreement with the manager, went on vacation for a whole month. During his vacation, a situation arose in the organization that required his participation. However, he refused to interrupt his vacation. Can he be fired for absenteeism?

: No, in such a situation you cannot fire someone for absenteeism. According to the law, recall from vacation is possible only with the consent of the employee A Art. 125 Labor Code of the Russian Federation. Therefore, you have no grounds not only for dismissing him for absenteeism, but also for bringing him to disciplinary liability in general (even in the form of a reprimand or reprimand )Art. 192 Labor Code of the Russian Federation.

An explanatory note from a mother will not replace an explanatory note from an employee.

S.F. Zorkina, Stavropol

The employee did not come to work for several days and did not provide an explanation for the reasons for his absence. His mother came to the organization with a request to issue her son’s work record book at his verbal request. The mother also said that her son was already working in another city and was not going to work for our organization.
Written explanations were taken from the employee's mother. Based on these explanations, we fired the employee for absenteeism, and gave the work book to his mother.
Now we’re thinking: did we do the right thing?

We warn the manager

If the employee does not want to leave vacation early, This is not a truancy.

: You made the wrong decision. In such a situation, you should have sought an explanation from the employee himself, and not from his family members. And Art. 193 Labor Code of the Russian Federation.

The mother's explanation in your situation is just an additional argument. But it cannot serve as evidence of absenteeism by your employee.

It was wrong to give the employee’s mother a work book, since she did not provide you with a power of attorney to receive it, written by her son. It was necessary to send a notification to the employee’s address about the need to appear for a work book or to agree to send it by mail e Art. 84.1 Labor Code of the Russian Federation. Until you receive an answer from him, the work book should be kept by you.

Written agreement on vacation time with the employer is in the interests of the employee

R.P. Kutsenko, Krasnodar

The manager verbally allowed me to go on vacation for 3 days outside the vacation schedule, and upon returning to work, he fired me for absenteeism. This is not the first time this has happened in our company. Is this legal?

: Of course, it is illegal if you have agreed on your vacation with him. But in your situation, you still need to be able to prove this to the court (including with the help of witnesses). And the best proof is your application for leave with the resolution of your manager. Then the court will reinstate you at work. And if you can’t prove it, the court may decide that you went on vacation without permission. O Ruling of the Ryazan Regional Court dated April 25, 2007 No. 33-580.

If a manager constantly practices such unfair actions towards his employees in order to deal with unwanted employees, then it is worth reporting these facts to the labor inspectorate.

If an employee refuses to provide an explanation, a report must be drawn up

The employee did not come to work on February 15 and 16, 2011. He did not provide the reason for his absence. Absences were recorded in acts and memos.
When he went to work, he refused to give an explanation, saying that “he doesn’t want to today, he’ll write tomorrow.” He did not provide documents justifying his absence from work. An act of refusal to give a written explanation was drawn up. The employee also refused to sign it, citing the fact that in principle he does not refuse, but only does not want to give written explanations today and will write them tomorrow. It was decided to fire the employee for absenteeism.
Did we do the right thing?

: Probably, the employee was playing for time in the hope that the one-month period for applying a disciplinary sanction from the date of discovery of the misconduct would expire and he would no longer be held accountable And Art. 193 Labor Code of the Russian Federation.

In general, you did the right thing, except that you should have drawn up a statement about the employee’s failure to provide explanations, and not about his refusal to give them. Remember that the employee always has 2 full working days when he can change his mind and provide you with an explanation for his absence I Art. 192 Labor Code of the Russian Federation. Therefore, it is better not to take risks, wait and draw up an act of failure to provide explanations.

In relation to a truant who wants to resign of his own free will, you need to act promptly

I.T. Gavrilova, Kazan

The employee did not show up for work and sent us a letter sent on the day of absence (March 21, 2011), in which she asked to be granted leave without pay from the specified date to April 1, 2011, and at the end of it to dismiss her on her own desire. The employee still hasn't returned to work. Is it possible to regard her absence as absenteeism and fire her not of her own free will, but specifically for absenteeism?

: As follows from your situation, the employee voluntarily went on vacation without pay, that is, she committed absenteeism, which means she can be fired for this b subp. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation; subp. “d” clause 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.

However, in your case, the employee in her statement expressed her intention to resign of her own free will. Of course, this does not deprive you of the right to fire her for prog l clause 33 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2. But this must be done within 2 weeks from the date of receipt of the said application from her. Otherwise, you will have to terminate the employment contract with her on her initiative. Moreover, it does not matter on what grounds the employee is dismissed.

What day to fire for absenteeism?

P.D. Tyuftyaeva, Tolyatti

The employee works on a rotating schedule. On March 25, 2011 he has a working day, then two days off. On March 28, he did not go to work without good reason. Do we understand correctly that since, according to the Labor Code, the day of termination of an employment contract is the last day of work, then the employee must be fired for absenteeism on March 25, 2011?

: No. It is incorrect to fire an employee on the day before the first day of absenteeism, that is, in your situation, March 25, 2011. Indeed, as a general rule, the day of termination of an employment contract is the employee’s last day of work. The exception is when he did not actually work, but he retained his place of work (position )Art. 84.1 Labor Code of the Russian Federation.

The employee, while the employer finds out the reasons for his absence and determines whether he had valid reasons or not, must retain his place of work. Agree, it looks strange when the date of requesting an explanation and the date of receiving it from the employee are later than the date of termination of the employment contract. After all, after dismissal, this person is no longer an employee and is not obliged to provide anything to the employer. At the same time, the employer cannot fire an employee before asking him for an explanation, etc. .Art. 193 Labor Code of the Russian Federation

In addition, a situation is possible when, after absenteeism, an employee returns to work and will work for some time while the employer determines whether he committed absenteeism, etc. Therefore, he cannot be fired on the day of absenteeism.

It is correct to dismiss an employee on the very day when an order is issued to dismiss him for absenteeism. But, as practice shows, even if you fire an employee on the last working day before absenteeism, nothing bad will happen. After all, this approach is based on the recommendations of Rostrud A Letter of Rostrud dated July 11, 2006 No. 1074-6-1.

Dismissal for absenteeism is a right, not an obligation of the employer

V.D. Rusanova, St. Petersburg

The employee did not return from vacation and did not make herself known in any way. Telegrams to her place of registration and place of actual residence remained unanswered. A month later, she finally showed up at work and wrote a letter of resignation of her own free will.
Should we fire her voluntarily or should she be fired specifically for absenteeism?

: You have the right to fire an employee for procrastination l subp. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation. To do this, you need to follow the procedure for bringing to disciplinary liability And Art. 193 Labor Code of the Russian Federation. But you can meet her halfway - fire her at your own request. After all, bringing to disciplinary liability is a right, not an obligation of the employer.

You cannot fire an employee for absenteeism during illness.

L.T. Skvortsova, Volgograd

We recently hired a new employee. Unfortunately, she turned out to be a drinker (although she did not come to work drunk). On January 11, 2011, she stopped going to work. Doesn't answer calls. As expected, we document all of her absences from work and put “NN” on the report card.
On February 14, we received a statement from her by mail stating that she was on sick leave. However, we doubt that she really has sick leave, much less for this entire period. And management still intends to fire her for absenteeism.
What if the sick leave is confirmed? What to do in such a situation?

: In such a situation, an employee cannot be fired for absenteeism. After all, you have her written explanation that she is on sick leave.

So for now, continue to document all of her absences from work. But proceed from the assumption that she is still sick. If this is not confirmed later, then you can fire her for absenteeism.

The employee did not show up for work and did not report the reasons for his absence. After the New Year holidays, this is not the rarest situation. Almost every employer sooner or later encounters “lost” employees. How to look for “loss” and how to document it? What can be prudently included in an employment contract? How to formalize the dismissal of an employee who does not show up to the office? What to do with his salary and work record?

Is there a problem?

First of all, it is necessary to understand that the employee may have valid reasons for absence or reasons that the court may consider such. Of course, a valid reason is the employee’s illness, but the list is not exhaustive. The court may consider the illness of your employee’s close relatives and the need to wait for a plumber if a pipe in the apartment breaks as valid. There can be many such reasons, and it is impossible to predict in advance how the court will evaluate them.

On the other hand, any unplanned absence of an employee is a serious problem for the employer; it is necessary to look for a replacement, shift shift schedules, and pay overtime. All this makes clear the irritation that such absence causes.

In all cases, it is necessary to approach this problem carefully and carefully, especially since any experienced manager or HR employee will always be able to identify employees who are “at risk” - those whose absence is often caused by unjustified reasons. These traditionally include employees who have just been hired and have not completed a probationary period, especially among young graduates. Despite the simplified procedure for dismissal during the probationary period, many of them simply do not want to burden themselves with the need for explanations with the employer. This category also includes single men who are in their thirties and have a craving for strong drinks or gambling. Among this category, so-called “binges” are common, after which the employee often does not want to go to work at all. Another risk category is nonresident or foreign citizens, as they say, “at work.” Moreover, if Russians are still at least somehow interested in complying with the dismissal procedure, getting the same work book, for example, then there is nothing holding foreigners back at all. At the same time, if a young mother of a small child “disappears,” the reason for the absence will almost certainly be valid and the employer will be provided with sick leave. Therefore, in a situation where an employee unexpectedly does not show up for work, you need to be quite careful and balanced in your decisions. Moreover, in many cases, the situation requires not so much legal or bureaucratic support as basic human communication.

The reason for the absence has not yet been clarified

So, the employee disappeared. What should an employer do in this situation? From a formal point of view, absence from work for more than 4 hours without good reason is absenteeism. But you need to understand that the employer will only be able to find out about the presence or absence of a valid reason from the employee himself or the competent government bodies and by following a certain procedure. Before the employer learns about the circumstances of the absence, the employee is absent for him for an unknown reason.

It must be remembered that the absence of an employee in this case does not affect the direct costs of the employer. Payment is made only for time actually worked. Working hours are recorded according to the Timesheet (unified form No. T-12). This form provides a special coding “NN” - the employee’s failure to appear due to unclear circumstances. This code is entered until the circumstances of the absence are clarified. So, days when the employee was absent from the workplace and did not inform the employer of the reasons for the absence are indicated by this code in the time sheets and are not subject to payment. At the same time, the termination of the calculation of wages in this case does not constitute a suspension of payment of wages in the understanding of labor legislation. After receiving supporting documents, an employee’s explanatory note or drawing up an act of refusal to provide explanations, these days are:

• or are considered absenteeism and are not paid,
• or payment is made depending on the reason for absence from work.

Thus, with proper accounting, the employer cannot even theoretically pay out excess.

Document fragment

Order of Rosstat dated November 12, 2008 No. 278 “On approval of the Instructions for filling out federal statistical observation forms: No. P-1 “Information on the production and shipment of goods and services”, No. P-2 “Information on investments”, No. P-3 “Information on the financial condition of the organization”, No. P-4 “Information on the number, wages and movement of employees”, No. P-5 (m) “Basic information on the activities of the organization”

The list of employees for each calendar day takes into account both those actually working and those absent from work for any reason. Based on this, the payroll includes in whole units, in particular, the following workers:

c) those who did not report to work due to illness (during the entire period of illness until returning to work in accordance with certificates of incapacity for work or until retirement due to disability);

d) those who did not show up for work due to the performance of state or public duties;

w) those who committed absenteeism;

y) those who were under investigation until a court decision.

Thus, in almost all cases of absence for both valid and unexcused reasons, employees increase the average number of employees of the organization.

In some cases this may be critical. So, in accordance with paragraph 3 of Art. 80 of the Tax Code of the Russian Federation “taxpayers whose average number of employees for the previous calendar year exceeds 100 people, as well as newly created (including during reorganization) organizations whose number of employees exceeds the specified limit, submit tax returns (calculations) to the tax authority in established formats electronic".

Even more serious is the restriction established by sub. 15 clause 3 art. 346.12 of the Tax Code of the Russian Federation: “The following organizations and individual entrepreneurs whose average number of employees for the tax (reporting) period, determined in the manner established by the federal executive body authorized in the field of statistics, exceeds 100 people have no right to apply the simplified taxation system.”

Therefore, an employer is often very interested in getting rid of such “ballast” - when a person exists on paper, but in reality he is absent. However, if the average number of employees is not important for the employer, then the main difficulty is that there is no one to work. And it can be solved in many ways:

• If the job does not require high qualifications, it is not difficult to find an employee for temporary work. Article 59 of the Labor Code of the Russian Federation directly states that the basic basis for concluding fixed-term employment contracts is precisely the replacement of temporarily absent workers.
• You can redistribute work within a structural unit or assign one of the employees on an internal part-time basis.
• There are many options, even to the point that you can introduce another staff position and hire an employee for it.

Ways to solve the problem directly depend on the circumstances of the “loss”.

An attempt to oblige the employee to notify the employer

The first thing that is necessary is to find out whether the employee has valid reasons for absence. It must be clearly understood that in this situation the initiative should always come from the employer.

In accordance with current legislation, an employee is not required to report his absence in advance, and this is logical, because the reason may arise unexpectedly (a situation that is terrible in its banality - a person has been in an accident and is in intensive care). In this regard, it is necessary to dwell on the recommendations of some lawyers about “fixing in employment contracts and local regulations the obligation to inform the employer in advance about the reasons for absence from the workplace, indicating the officials to whom the corresponding notice must be addressed.” Moreover, some employers go even further, including in the employment contract a requirement that if the employee cannot do it himself, he is obliged to ask one of his relatives or friends about it. I have come across passages like this in employment contracts:

Example 1

A fragment of an employment contract with the condition that the employer must be informed. This is a wrong practice!

7.2. The employee is obliged to report the reasons for his absence from the workplace in person or by telephone. If he cannot do this himself, he is obliged to ask one of his friends or relatives to make a message for him. The employee is required to provide both the reason for his absence and the expected duration.

The absurdity of this requirement is already visible in the first sentence. If an employee is absent, that is, does not show up for work to perform his duties, then how can he appear “in person” to report this? This practice has no legal basis, and the inclusion of such provisions in an employment contract will not in any way affect the court when it evaluates the reasons for the employee’s absence from his workplace or compliance with the dismissal procedure. Moreover, failure to comply with the requirement of the employment contract to notify the employer cannot in itself serve as a basis for bringing disciplinary action, since by establishing this requirement, the employer goes beyond the limits of his competence, the very “master power” that he has over employees in his work time. It must be understood that outside of this time, the employee is not obliged to comply with internal labor regulations or the requirements of the employment contract 1. It is worth noting that it is extremely difficult to prove in practice the fulfillment or non-fulfillment of such requirements. An employee’s statement in the style: “I called the foreman, he was in the know,” refuted by the foreman in the style: “He didn’t call me,” followed by getting personal and using some particularly sharp expressions of the Russian language will cause nothing but irritation from the squabble in the judge and the desire to call a bailiff. Therefore, the presence of such clauses in the employment contract with a high degree of probability will not in any way affect the court’s opinion on the legality or illegality of the dismissal. Of course, in this case we are only talking about the likelihood of this, since it is impossible to take into account all aspects of an individual trial, just as it is impossible to determine either the qualifications of a judge or his internal beliefs before the start of the trial.

At the same time, despite the complete absence of a legislative basis for the inclusion of such provisions in an employment contract, their presence can discipline the employee, helping to avoid unnecessary conflicts. And in some cases, to create a certain impression in the judge about one of the parties, and personal sympathies in the trial, despite the equality of the parties and competitiveness, have not yet been canceled. Therefore, such proposals can be included in the employment contract as recommendations, and not as duties of the employee.

Example 2

More correct wording in the employment contract regarding the desirability of the employee notifying the employer

7.2. In case of illness or absence for any other reason, the employee is recommended to notify his immediate supervisor or head of the HR department, indicating the expected time of absence. If the employee is deprived of this opportunity, he can transmit this message through third parties.

We need to find a worker!

If the employee does not report the reasons for absence and is not at the workplace, then there are two courses of action for the employer:

• "Correct" from a formal point of view and
• most often used in practice.

The correct one is immediate recording of the fact of employee absence. This can be done with the help of a memo from the head of the unit addressed to a superior manager with the subsequent drawing up of an act or with the attachment of a memo or memo from the shift manager, ensuring the organization’s access control that this employee did not pass through the organization’s entrance. This document is superimposed with the manager’s visa: “to sort it out and report.”

Example 3

Memorandum

The second, more common method is an oral report to the manager about the fact of absenteeism with the same verbal order to find out the reasons for the absence. What are the consequences of the lack of a bureaucratic approach to recording the employer’s actions? First of all, if a decision is later made to dismiss an employee “under article”, all these documents will have to be drawn up, but “retroactively”. Such “falsification” often leads to errors in documents, which can become fatal when resolving a dispute in court.

Next you need to try find out the reasons for the employee’s absence. In our age of universal telephony, it is difficult to find an employee who does not have a mobile phone, or even two. Almost every home also has landline telephone points. Many people have email and messengers installed (instant messaging services, such as Skype, ICQ, MSN Messenger). Many people communicate on social networks. Through any of these channels, an employer representative can try to find a person without leaving his office. In 5 out of 6 cases, after calling the absent employee, the situation is resolved. The “missing person” reports that he is at home with a fever, or helps a friend move to another apartment, or moves his grandmother across the street and promises to be at work in a couple of days and give all explanations in writing. Most often, this happens, and only then, depending on the reliability of the explanations, the employer decides whether to apply disciplinary sanctions to the employee.

The employee quit

However, there are quite rare cases when an employee declares: “I quit, but I don’t need documents,” or his phone number turns out to be unreachable. If in the first case everything is more or less clear - where the employee is, it is known, his will to terminate the employment contract is clearly expressed (often in an obscene form), then in the second a more detailed investigation will be required.

Yes, we remind you once again that the employer does not have the right to disturb the employee outside his workplace with any demands. Any power an employer has over an employee ends outside the organization's borders and is limited to the employee's time at work. But you can always ask one of his friends or one of his employees (for example, from the security service) to go to the house of the missing person to find out the reasons for his absence. Moreover, such attention can not only clarify the situation, but also, with proper preparation, help motivate both the missing employee and the entire team. After all, it is precisely such events that show the employee the solidarity of the team and the management’s concern for his needs. It is necessary to understand that actions of this kind are outside the legal framework of labor legislation, but they help to assess and reduce the likelihood of risks of subsequent litigation.

It is for such cases that it is necessary to clearly monitor the relevance of the contact information in the personal cards of employees and its timely updating. It can also be recommended to include in the employment contract not only the address at which the employee is “registered”, but also his real address of residence. As a recommendation for an employee, you can also include a proposal for the employee to inform the employer of a new residential address when moving to another place. But you need to understand that it is almost impossible to punish an employee for failure to provide such information and this provision of the contract can only be used as a way of moral influence on the employee.

Let’s say the situation has become clear, there are no valid reasons and the employee does not want to return to the workplace. The employer has two options here:

• the first is the registration of a disciplinary sanction for absenteeism;
• the second is to try to resolve the matter without escalating the situation. This can be avoided. It is enough to convince the employee to formalize his desire to terminate the employment contract by signing a letter of resignation of his own free will or by agreement of the parties, as well as an application to send the work book by mail. However, the employer can do without an application to send the work book by mail if, immediately after receiving the resignation letter, he sends the employee a notice of the need to appear for the work book. All this will allow you to do without the presence of an employee in the employer’s office and reduce the risk of a legal dispute to almost zero.

If everything could not be resolved peacefully or the worker was never found, the situation becomes significantly worse. Dismissal for absenteeism, provided for in subsection. "a" clause 6 of Art. 81 of the Labor Code of the Russian Federation, is a measure of disciplinary liability. It is virtually impossible to comply with the procedure established by law for bringing to disciplinary liability in the absence of an employee!

For a detailed article on the procedure for dismissal for absenteeism with examples of completing all the necessary documents, read the article “Late for work: documentation and enforcement measures” in No. 4` 2009 on page 62, No. 5` 2009 on page 56 and No. 6` 2009 on page 64 of the magazine. By the way, it is not at all necessary to fire someone for absenteeism; other measures of influence are also possible, they are also described in the article by Maria Smolyaninova

It is impossible to “legally” fire...

According to Art. 193 of the Labor Code of the Russian Federation, before applying a disciplinary sanction, the employer must request from the employee written explanation. The employee is given 2 working days to prepare such an explanation.

If after 2 working days the specified explanation is not provided by the employee, then an appropriate Act. Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action. However, if the employee is absent, it is impossible to ask him for any explanation. It should be understood that drawing up any acts in this situation cannot help in any way. Providing an explanatory note is, in fact, an integral part of the employee’s right to protect his legitimate interests. And if such an explanation was not requested from the employee, it means that the right was violated. Fixing a violation of this right by act is ineffective. After all, there is a lack of evidence confirming the offer to the employee to give an explanation (the employee’s signature with the date, an act of refusal to sign, etc.).

• Send a “notification (to the following addresses: registration at the place of residence; place of residence of the employee known to the organization, etc.), the notification should indicate the period within which explanations must be provided. The specified period must be determined in such a way that the employee has a real opportunity to appear before the employer to give explanations.” In this case, it is strongly recommended to send such a request “by registered mail with acknowledgment of receipt and a list of attachments.”
• “Send a telegram to the employee with acknowledgment of delivery, as well as with the obligatory receipt of a certified copy by telegraph.”

Let's take a critical look at these recommendations. The authors of such recommendations justify the possibility of sending such notifications by the absence in the current legislation of a ban on their delivery in person. At the same time, the simple truth is not taken into account - the current labor legislation regulates only labor relations. That is, those relationships that arise in the process of performing a labor function by an employee. The parties to these relationships are endowed with certain rights and limited by certain responsibilities. They are limited in their actions by the boundaries of these relationships. An employee is in the legal field only during working hours and at the workplace or in situations equated by the legislator to such (a business trip, for example), and his duties exist only subject to these restrictions. Therefore, the employer can demand anything from the employee only at this time.

Of course, no one prohibits one person, in this case a legal entity, from sending correspondence to another person, even one who has an employment relationship with him.

The employee may or may not respond to this letter, and his response may be considered an expression of his will to continue or terminate the employment relationship. However, it must be clearly understood that from the point of view of the theory of labor law, unanswered requests from the employer for explanations by mail or telegram do not entail any consequences and cannot be used as the basis for any actions of the employer.

Of course, of all the above tips, only one is correct - if you are writing to an employee, then make sure there is confirmation of what was in the letter and that your shipment was received.

A possible option for formatting a message to a lost employee is shown in Example 4.

Example 4

Absent Employee Notice, which can be sent by mail

Annex 1

Appendix 2

Appendix 3

... but I really want to

At the same time, such letters are not useful. They can be considered in the context of the employer’s efforts to search and determine the reasons for the employee’s absence from the workplace. If such events led to the employee responding, then the main result necessary to resolve the employer’s difficulties was obtained. Obtaining the necessary documents from an employee becomes a matter of negotiation skills and time. Therefore, if the employee could not be found by phone, email, classmates, Twitter, etc., you can send a gentle request to receive clarification both by mail and telegram. But this will be precisely the wish, and not the administrative act of the employer.

Moreover, it is advisable for the employer to record all actions to find an employee. If everything is clear with postal items, then difficulties may arise with other methods. Therefore, wherever possible, messages sent to an employee must be recorded in outgoing correspondence logs, and where it is impossible, due to the nature of the mail, to draw up reports and exchange official notes between employees. For example:

• instead of placing the text of the request in the body of the email, you can attach a scanned copy of the outgoing notification registered in the journal with the signature of the manager;
• it is possible and necessary to draw up an act of sending a letter on a social network with a printout of the screen image and certification of it by the signature of an authorized person of the organization and affixing the date;
• you can send a message to the employee who is registered on the social network as a friend of the “missing person” and receive confirmation of receipt of this message.

Most of these “documents” do not have any legal consequences, but, like postal notices, they will help create the impression of good faith in the employer’s behavior if the dispute goes to court.

Example 5

Confirm with the act everything that is possible

In all cases, it must be clearly understood that lack of employee explanation or the absence of an act drawn up at the workplace immediately after the employee’s refusal to provide such explanations means a significant violation of the procedure for bringing the employee to disciplinary liability. All other things being equal, such a violation of discipline with almost 100 percent probability should lead to the employee’s reinstatement, with payment for forced absence and payment of compensation for moral damage. It must be clearly understood that it is impossible to circumvent this legal restriction. To the question of whether it is possible to dismiss an absent employee whose location is unknown and from whom no explanation has been received for his absence from the workplace, the answer is unequivocal - no, without violating the current labor legislation this is impossible. At the same time, in this case, as in many others, the principle applies: when you can’t, but really want to... absent employees were fired and continue to be fired.

Moreover, it should be noted that in most cases this does not have any consequences for the employer if the employee does not go to court. And such stories often involve people from the “risk group” who, in principle, will never apply anywhere, since the reasons for their absence are clearly disrespectful not only from the point of view of the employer or the court, but also from their own point of view. However, there are also situations when the reckless actions of an employer who wants to get rid of an unwanted or inconvenient employee lead to legal proceedings. Therefore, situations with “missing people” require careful study and an individual approach. Once in the employer's place, you should not make sudden movements. A general analysis of the situation is needed, including the identity of the absent employee, the frequency of his seeking medical help, the presence of sick relatives or small children, the general attitude towards work, the presence of thanks and penalties, the duration of absence and much more. In principle, competent employees of the employer are always able to predict the likelihood of a conflict and even the direction of its development. You should always remember that the best way to fire an employee is to part with him “by agreement of the parties” or “at the employee’s own request.”

Technically, the dismissal process in this situation looks similar to the process of dismissing an employee for absenteeism, i.e. according to sub. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation. The order differs from the “usual” one for this situation only in the “substrate” of supporting documents, first of all, in the absence of explanations from the employee and the replacement of an act of refusal to give explanations, act on the impossibility of obtaining explanations from the employee. This order will not also contain the employee’s signature confirming familiarization with it. See samples of the order and act in Examples 6 and 7.

Example 6

Order to dismiss an absent employee

Example 7

Act on the impossibility of obtaining explanations from the employee

If an employer deliberately violates the dismissal procedure, it is necessary to reduce violations of labor laws to a minimum. Personnel documents must be drawn up flawlessly, notification of the need to come to the organization for a work book must be sent in a timely manner, every movement must be recorded, and a report must be drawn up for every action. And, naturally, you need to be prepared for a possible escalation of the situation and legal proceedings.

Separately in this situation there is a question about work book employee. In accordance with current legislation, the employer is obliged to issue it on the employee’s last working day. If on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. From the date of sending such notification, the employer is released from liability for the delay in issuing the work book.

Work books not received by employees upon their dismissal are stored for 2 years in the personnel service, and then transferred for storage to the organization’s archive (in accordance with clause 43 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers). The total storage period for unclaimed work records is 75 years (according to the “List of standard administrative archival documents generated in the course of the activities of state bodies, local governments and organizations, indicating storage periods” 2010).

Death is a “valid” reason

All people are mortal, and there are situations when grieving relatives give explanations for the reason for an employee’s absence. How to be in this case? Termination of an employment contract due to the death of an employee is a special case; the legislator provided for it in paragraph 6 of Part 1 of Art. 83 Labor Code of the Russian Federation. Termination of the employment contract in this case occurs regardless of the will of the parties, but this does not eliminate the need for proper execution of documents.

The basis for issuing an order to terminate the employment contract in this case is death certificate in the form approved by Decree of the Government of the Russian Federation dated July 6, 1998 No. 709 “On measures to implement the Federal Law “On Acts of Civil Status”. Without this document, the termination of the employment contract is incorrect. It is worth noting that in most cases there are no problems with obtaining it. As a rule, a copy of the certificate is provided by one of the closest relatives in order to receive payment for the deceased. After all, in accordance with Art. 141 Labor Code of the Russian Federation wages not received by the day of the employee’s death are given to members of his family or a person who was dependent on him on the day of death. Payment of wages must be made no later than a week from the date of submission of the relevant documents to the employer. As can be seen from this norm, the relative must be paid all the amounts that the employee himself would have received upon termination of the employment contract.

The day of dismissal in this situation is the date of death of the employee indicated on the death certificate. The same date must terminate the employment relationship with the employee even if he died on a weekend or holiday.

Order on termination of an employment contract is drawn up according to standard form No. T-8. The document on the basis of which the order is issued is the death certificate with the number and date. The line “I have read the order” remains blank in this case; the law does not require that relatives be familiarized with this order.

Sign up for work book in this case, it is entered in the general manner with the signature of the person responsible for maintaining work books and the seal of the organization. Naturally, the signature of the employee or his relative in the work book is missing in this case. The work book is issued to a relative against signature or sent to him by mail upon his written application.

It is worth noting that the receipt itself confirms the fact of transfer of the work book to a relative of the deceased, and it is sufficient to comply with the necessary formalities (it is drawn up in free form, see Example 8). Clause 37 of the Rules for maintaining and storing work books specifies this as the only document necessary in this case. However, the question often arises: what to do with the work record book? Resolution of the Ministry of Labor of the Russian Federation dated October 10, 2003 No. 69 “On approval of the Instructions for filling out work books,” which introduced the form of this journal, does not contain any information in this regard. But the very logic of this document indicates that each work book must be accompanied by a corresponding mark both “at the entrance” and “at the exit”. We see two options:

• first: the signature is affixed by a relative of the deceased, and next to his signature a corresponding decoding is placed, for example, “relative of the deceased employee P.P. Kitov”;
• second option: the signature of the employee responsible for maintaining work books is affixed, again with the appropriate mark: “issued by M.I. Kitova. as a relative of a deceased employee on a receipt dated January 12, 2012.”

In the absence of unambiguous legal regulation, both options are equivalent. However, in our opinion, the first one is more convenient for the employer, simply due to the fact that if the receipt is lost during storage, then another handwritten signature of the relative remains, confirming the fact that the work book of the deceased was issued to him.

Storage of work records not claimed by relatives of the deceased is carried out in the same manner as for unclaimed work records of dismissed employees, that is, for 75 years from the date of termination of the employment contract.

• Personnel records management and Labor law

Juli148

02.12.11 — 09:07

The employee has gone missing.
How to arrange this. I am aware of the proposed documents, but the recommendations are different everywhere and the 1C certificate will re-read itself.

Also, in order to accrue salary and submit the period, the No-Show document must be closed indicating the reason and day of return, but we simply don’t have the person and the reason.

Specialists with 10 years of experience have broken their heads, we will be glad to receive your advice.

hhhh

1 — 02.12.11 — 09:24

(0) close No-shows are not required to pass the period. You can close them in a year.

aleks-id

2 — 02.12.11 — 09:25

dismiss under article Absenteeism not offered?

Fish

3 — 02.12.11 — 09:29

(2) It seems that this is illegal, because... according to the Labor Code you must either have an explanatory note or refuse to write one :))

Fish

4 — 02.12.11 — 09:30

+(3) st. 193 Labor Code of the Russian Federation

VIrina

5 — 02.12.11 — 09:40

(0) Make a personnel document “Absences and illnesses of organizations,” for example, from 01.11.11 “Absent for an unknown reason.” Next is the document “Working Time Sheet” for this employee. The employee will not be included in the document “Payroll for employees of organizations” for November. In the following months, you will need to make a “Time Sheet” document until the person either goes to work or is fired.

dva1c

6 — 02.12.11 — 09:45

I assume that (0) has the wrong gender in the personal account)

Juli148

7 — 02.12.11 — 09:47

We are also trying the option of registering No-shows in organizations, for example, from 11/08 to 11/30 and from 12/01. We are closing the timesheet for November while we wait for the accountants to see how it will close and what will be included in the accruals.

And the worst thing is that if no-shows are not cleared, no accruals are made to the Pension Fund

Juli148

8 — 02.12.11 — 09:53

and Art. 193 of the Labor Code of the Russian Federation on discipline will not help us, the employee has gone missing.

Juli148

9 — 02.12.11 — 09:55

Thanks to all participants, but I feel that this is not quite all.

Fish

10 — 02.12.11 — 09:57

(8) In order for a person to be declared “missing”, a court decision is required. I don’t remember which articles :))

Ant1773

11 — 02.12.11 — 11:57

(2) My wife works as a personnel officer, so in the summer they almost begged the “worker” to come write a statement. To fire someone for absenteeism, you must have either an explanatory note or a waiver of the explanatory note, or a minimally proven requirement to provide an explanatory note.
Dismissal for absenteeism is not just an option for dismissal - it is one of the disciplinary punishments, and if the employee challenges its legality in court, he can be reinstated at work without any problems and receive wages for this period...

Anlen

12 — 02.12.11 — 12:55

and we fired five people, although they haven’t gone to work for 5 years, before that they made a request to the police

Problems cannot be solved at the same level of competence at which they arise. Albert Einstein

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Hello colleagues!
Does he have the right to life on the “N” report card? That is, an employee is absent from work for some reason, we give him an “N”, then he must write a statement about the reason for his absence (without saving his salary) or bring in sick leave? Can’t we just leave “N”?

Jessika Rabbit
Yes, that’s clear, I’m talking about what to ask next, when an employee shows up and doesn’t bring sick leave, is it necessary to take an application from him at his own expense.

Francesca
“N” cannot be left, or the statement is retroactive, or absenteeism.

Francesca
Are you correcting already closed timesheets next month??? In this case, a separate time sheet is written for a specific employee and submitted to the accounting department, but the main one, already closed, is not touched.

Varenyevna
Francesca, of course, if the report card has already been submitted, on a separate additional sheet, I completely agree with you! I don’t understand why the author needs to leave absences on the report card? (it is clear that the question is not entirely directed at you... :-)).

Jessika Rabbit
yes, there are no particular goals, but often people ask for one day off and we simply put a no-show in order to record the absence and not forget by the time the report card is closed who was absent and when. So the question is, is it necessary to then run after them and shake statements from them or can you leave the usual failure to appear.

Francesca
no, you need to ask them for applications for days without salary

Jessika Rabbit
and if NN remains, then what is the risk of this during verification?

Varenyevna
Or maybe you can immediately take out a vacation without saving your salary upon application and then not remember and not run after anyone? And put DO/16 on the report card. Management - as I understand it, is not against letting people go?

Jessika Rabbit
management is not against it, but often people call directly on the day of absence, rather than leaving in advance.

Varenyevna
In this case, you will have to run anyway!

How to properly register absenteeism for an employee according to the Labor Code of the Russian Federation?

And it takes less energy to get an application, since in this case you only have to run to one person who was absent, and if the absence is confirmed, the act is signed by three people, you also need to familiarize the person who was absent with the act, and then still demand an explanation! And if you refuse to give them, draw up an act again!
The case when they call on the day of absence can be qualified as absenteeism according to the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2
“for the unauthorized use of vacation days, as well as for the unauthorized departure on vacation (main, additional).” But again, we need acts confirming absence from work + an explanatory note.
It is impossible to leave the NV without explanation in the report card - you must have a justification for non-payment of the employee’s salary for that day.

Francesca
This is what I’m talking about, that they attach an additional sheet, and do not correct the closed report card

Natalie Piterskaya
Did I argue?

Natalie Piterskaya
Just in case: I never recommend correcting a closed report card!

Nerd
It is also practiced in large enterprises)))

Natalie Piterskaya
This is practiced at all enterprises. At enterprises with 10 people there are no less than at large ones. This is required by law. It's necessary. Without documentary evidence of events it can be very difficult.

Nerd
WOOOOOOOO!!! Everyone knows this, but in tiny companies, accountants don’t even bother with this; if necessary, they’ll print it out from the program and that’s it.

Natalie Piterskaya
I don’t know... I worked in tiny ones: there were report cards everywhere and more than one! If the company is “gray”, then you also manage several of them!

Nerd
In 1C it is automatically filled in)))) But whether it is printed or not is another matter. And the “gray” ones are sacred.

Natalie Piterskaya
:-)))))))))))))))))))))))))))))) I am very interested in the word “automatically”. What did you want to say with this word? In fact, someone generates a time sheet in any program.

Varenyevna
I had those too. There is “white life” and “black life”. But according to the “white life”, as a rule, everyone always had “appearances”, except for official holidays. And payment issues were resolved on the basis of the “black report card”.

Natalie Piterskaya
It wasn’t like that with us: For whites - attendance, sick leave, vacations, business trips. And on black days I had nights, holidays and weekends.

Varenyevna
And this is a “tiny” company? With this approach to business, it has probably already become a transnational corporation, no less! :-)))

Natalie Piterskaya
Not really. She has certainly grown up. But compared to corporations - zero.

Nerd
This is too luxurious)))) For whites - turnouts and vacations, and everything else is in the dark)))

Varenyevna
So that’s why they are all gone!!!

Natalie Piterskaya
Who is absent???

Varenyevna
Sorry... out of context!!!

Natalie Piterskaya
This is a necessity.

Jessika Rabbit
Where is it written that NV cannot be left on the report card, tell me, I’ll read it. - this is exactly what interests me too...

Anastaziii
Well, there were no complaints, because you probably don’t have any pests.. The Pension Fund specifically goes out to check the preferential length of service, mostly they need this, and you won’t be able to report on them, since the accompanying note to the list of names indicates all deviations from the preferential length of service with order numbers.

On the correct registration of an employee’s absence from work for reasons unclear at the beginning of the period of absence

Print

Question.

The employee was absent from work from May 30 to June 10. , When closing the report card for May, he was given a no-show for unknown reasons. 11.06. he brought a certificate of arrest, on the basis of the certificate, the corrective report was marked with “NB” - suspension from work (preclusion from work) for reasons provided for by law without accrual of wages. Is an order from the employer necessary in this case?

Lawyer's answer

The legislation does not contain a clear procedure for registering an employee’s failure to appear at work due to detention (arrest).

Absenteeism in organizations for unknown reasons.

Therefore, it is best in this case to act according to generally established rules.

It is necessary to draw up a report regarding the employee’s absence from work. The document indicates the date and exact time of the employee’s absence, as well as the time the report was drawn up. The document must be drawn up daily before the employee returns to work or is dismissed (for example, the employee is sentenced to imprisonment). You can also receive a report or memo from the immediate supervisor of the arrested person regarding the employee’s failure to appear.

Next, you need to decide how to fill out the time sheet. If the employer does not yet know the reason for the employee’s absence, then the letter code “NN” (failure to appear for unknown reasons) or the digital code “30” should be entered on the time sheet. The same code can also be entered in cases where it is known from the very beginning that the employee has been arrested.

This is due to the fact that the unified form N T-12 (approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1) does not provide an alphabetic or numeric code to indicate an employee’s failure to appear at work due to arrest.

Also sometimes they use the letter code “NB” (numeric - “35”) - suspension from work. But this is not very correct. Thus, removal from work occurs only for certain circumstances, to which arrest does not apply. This code should be entered in the report card only if the court suspended the arrested person from work and only from the moment specified in the decision.

Let us remind you that the employer, on the basis of the Procedure for using unified forms of primary accounting documentation (approved by Resolution of the State Statistics Committee of Russia dated March 24, 1999 N 20), has the right to make changes to the time sheet. Consequently, he can enter an additional code indicating the absence of the employee due to arrest; these additions must be formalized by an appropriate order.

If the organization has developed its own forms of primary accounting documents (from January 1, 2013, the forms contained in the albums of unified forms of primary accounting documentation are not mandatory for use), including time sheets, then the symbol should be chosen from those that were installed independently.

Thus, on the report card, regardless of whether the reason for absence is known or not, you can enter the code “NN” or the code entered in the organization to indicate failure to appear due to arrest. If the reason for the absence was not immediately known and the timesheet has already been marked “NN”, and the company has entered a special code, then the document can be corrected.

After returning to work, the employee must provide documents confirming the reason for absence. Depending on the preventive measure, they may be:

- protocol on administrative detention. Such detention is carried out for a period of three to 48 hours, that is, a maximum of two days. A protocol is drawn up if an employee is detained on suspicion of committing an administrative offense. The document must indicate the time of detention and release. A copy of the protocol is issued to the employee at his request. If he has not received a copy, he should be asked to do so;

— certificate of serving an administrative arrest in a special detention center;

— certificate of release from custody. It is issued to an employee who has been arrested on suspicion of committing a criminal offense. The document must indicate who detained the employee, the date and time of detention and release.

During the period of arrest of an employee, the employer has the right to take another employee in his place, for example, under a fixed-term employment contract, part-time (internal and external) or by way of temporary transfer.

Article: Employee arrested... What should an employer do? (Svetlichnaya I.R.) (“Practical Accounting”, 2014, No. 5; “Consultant”, 2014, No. 11) (ConsultantPlus)

Based on the above, issuing an order in this case is not required.

The explanation was given within the framework of the “CONSULTATION LINE” services by Igor Borisovich Makshakov, legal consultant of LLC NTVP “Kedr-Consultant”, June 2017.

When preparing the answer, SPS ConsultantPlus was used.

This clarification is not official and does not entail legal consequences; it is provided in accordance with the Regulations of the CONSULTATION LINE (www.ntvpkedr.ru).

(0) small note:
In No. 3’2010 of the KADROVIK.RU magazine, in answers to questions from our forum, an expert commentary on this topic was published:
"As follows from paragraphs.

How to fill out a report to the Pension Fund if the reason for the employee’s absence from work is not clear

"a" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, absenteeism is the absence of an employee from the workplace without good reason during the working day (shift), regardless of its duration, as well as in the event of the employee’s absence from the workplace without good reason for more than four hours in a row during the working day ( shifts). Absenteeism is one of the gross violations of labor duties by an employee. In paragraph 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” unexcused absence from the workplace includes, among others, the abandonment of work without a good reason by a person who has entered into an employment contract for a certain period, up to expiration of the contract or before the expiration of the notice period for early termination of the employment contract. Thus, if an employee was absent, say, for a day at work, and then brought a certificate from the clinic or an ambulance call card (as in the situations presented in the forum), then consider this is not worth absenteeism; the “respectfulness” of absence from work has been confirmed.
Until the absent person appears at the workplace in the work time sheet (unified forms No. T-12, No. T-13, approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1), the employee’s failure to appear for unknown reasons (until the circumstances are clarified ) is designated by the code “НН” (“30”). When the employee returns to work, depending on the reason for absence and the documents provided, the letter values ​​are corrected:
- for code “B” (“19”) - temporary disability (if sick leave is provided for the period of absence);
- for code “T” (“20”) - temporary disability without the assignment of benefits in cases provided for by law.
Since in the situations under consideration, personnel service employees were not presented with certificates of temporary incapacity for work, but other documents, the time away from work is corrected to code “T” (“20”).”

You will learn:

• What does the concept of “truancy” include and what are the measures to prevent losses from absenteeism
• How to correctly record an employee’s absence from work
• What measures can an employer take in relation to a truant worker?

In any organization, it happens that employees do not go to work. Sometimes, even if there are good reasons (for example, illness), the employee not only does not report his absence to the employer, but also does not confirm his absence from work with supporting documents. In this case, failure to appear is considered absenteeism.

But there are situations in which it is difficult to understand immediately: for a good reason, the employee stopped going to work or not, in which situations he can be fired, and in which - absolutely not. Often, a situation that is clear at first glance turns out to be far from being so simple upon further examination.

How to correctly assess the situation? What documents should be completed and within what time frame? How to prevent violations of labor laws? We will consider these and other questions in this article.

MEASURES TO PREVENT LOSSES FROM ABSENTANCE

The absence of an employee from work, even for a short time, disrupts the work process. To minimize damage, the organization must take a number of measures:

• The internal labor regulations must contain a clause obliging the employee to warn his immediate supervisor in advance about the inability to go to work, the reasons for absence and the expected period of absence. Fulfillment by the employee of the relevant obligations will help the manager make timely decisions on the distribution of the responsibilities of the absent employee among his colleagues;
• The head of a structural unit must have a list of employees whom he can entrust to perform the functions of an absent employee. The employees themselves, in turn, must be aware of the colleague’s affairs, which they will need to carry out in the event of his absence (not only unexpected, but also planned (for example, during a vacation or business trip));
• the manager must have specific instructions regulating his actions in the event of an employee’s absence without warning (example 1).

The instructions are of an auxiliary nature; they do not have to be issued on the organization’s letterhead and certified by the signature of the manager. The main condition is that they must contain a specific algorithm of actions.

Example 1

Memo to the head of the department on actions in case of employee absence

1. Call the employee at all telephone numbers known to you (home, mobile, etc.) and find out the reason and possible duration of his absence.
2. Ask your subordinates whether the employee has spoken about possible absence from work. If one of the employees is aware of the reasons for a colleague’s absence, ask them to state them in a memo addressed to the head of the organization.
3. Draw up a report on the absence of the employee, the measures taken to find him and their results.
4. Take all documents to the HR department and receive instructions there on further actions regarding the absent employee.

Specify in the documents as clearly as possible the employee’s workplace (workshop, machine, office number. If you have a chain of stores and regularly rotate staff, such specificity, on the one hand, will complicate the work of personnel services, increasing the document flow, and on the other hand, will protect the interests of the employer.

A workplace is a place where an employee must be or arrive in connection with his work and which is directly or indirectly under the control of the employer. According to Part 4 of Art. 57 of the Labor Code of the Russian Federation, the condition of the employment contract about the workplace is an optional (that is, optional) clarification of the condition about the place of work. We recommend (if necessary) that the employee be assigned to a workplace not by an employment contract (in order to avoid subsequent problems with changing this condition of the employment contract), but by a unilateral document (an order for the organization, an order for the division, a notification, etc.).

When registering an employee - part-time worker focus his attention on the fact that part-time work (as opposed to freelancing) is being done regularly, he is entitled to leave, as at his main place of work, but it is prohibited to go on it without permission. As practice shows, many workers perceive part-time work as additional income if they have free time, not realizing that a second job is same obligations, as when performing the main one.

THE EMPLOYEE DIDN'T GO TO WORK: WE FIX A NO-SEE

On the first day of an employee’s absence from work, we cannot be sure that he is absent (or even absent) and not sick.

A clear record of absence will help if the fact of absenteeism is confirmed over time, and will not hurt if the employee brings a certificate of incapacity for work. The failure to appear report must be drawn up in the presence of two witnesses. It is better if employees from related departments act in their capacity - if an employee challenges his dismissal in court, he will not be able to refer to the alleged pressure exerted on witnesses by the manager.

The Labor Code of the Russian Federation does not oblige the employer to immediately begin an active search. But if the missing employee is a responsible person, lives alone, and his phone does not answer, we recommend going to his home - perhaps the employee needs urgent help.

For example, dentist N. did not come to work on time. None of the colleagues heard the doctor planning to leave urgently or complaining about feeling unwell. The head of the department called him throughout the day, but the phone was silent. Concerned about N.'s absence, she went to his house. Nobody opened the door. When the local police officer was called and opened the apartment, it turned out that the 45-year-old man was dead (as it turned out, due to a stroke).

If an employee does not show up for work, the letter code “NN” or the number 30 is entered in the time sheet (failure to appear for unknown reasons (until the circumstances are clarified)). If the timesheet is maintained:

If the organization is large, with a complex structure, for uniformity of document flow, the procedure for recording working time in the absence of an employee should be clearly stated in the local regulatory act.

If you are not sure that the employee is sick, for the first week it makes sense to draw up reports of his absence every day; in the future, you can limit yourself to a report of the employee’s absence during the week, drawn up on Fridays. This issue is not regulated by law, so you need to be guided by common sense and judicial practice.

The legislation also does not establish a fixed list of documents that must be completed when absenteeism. In the courts as evidence more often admit:

• time sheet with appropriate marks;
• acts or memos about the employee’s absence from the workplace;

SCIENTIFIC EDITOR'S NOTE

As well as certified printouts from the electronic system for recording the entry and exit of workers (paragraph 5 of clause 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 28, 2014 No. 1 “On the application of legislation regulating the work of women, persons with family responsibilities and minors”).

• notifications to the employee with a request to inform about the reasons for absence from work (Appeal ruling of the Moscow City Court dated August 2, 2013 No. 11-15221).

SCIENTIFIC EDITOR'S NOTE

In addition, if written explanations are not received from the employee, in accordance with Art. 193 of the Labor Code of the Russian Federation, an act of failure to provide explanations must be drawn up. In their practice, courts in most cases are of the opinion that the employer lawfully applied a disciplinary sanction, including dismissal for absenteeism, if the employee did not receive a notice to provide written explanations requested by telegram (or letter), for reasons beyond the control of the employer (Appeal ruling of the Moscow City Court dated July 28 .2014 No. 33-29793/14).

WE FIND OUT THE REASON FOR NO APPEARANCE

If an employee brings a certificate of incapacity for work or a certificate of seeing a doctor, all documents about his absence should be filed in the appropriate file. Destroy them absolutely not possible!

If the employee does not present supporting documents, in accordance with Art. 193 of the Labor Code of the Russian Federation, the employer is obliged to request from him written explanation. The Labor Code of the Russian Federation does not oblige the employer to draw up a request (notification) in writing (example 2 ® ), but in court a document is always a more powerful argument than words. Therefore, it is better to make a request in two copies, give one to the employee, and ask him to sign on the second.

Example 2

Notice of the need to explain the reasons for non-appearance

If within two workers days the employee does not provide written explanations, an appropriate report should be drawn up.

Failure by an employee to provide explanations is not an obstacle to applying a disciplinary sanction (including dismissal) (Part 2 of Article 193 of the Labor Code of the Russian Federation).

If an employee does not come to work for a month or more and does not answer phone calls, the search should be intensified. You can call him at home after work - there is a high probability that his relatives (and perhaps the employee himself) will be able to clarify the situation. Since it is difficult to attract witnesses to a telephone conversation in the evening, try to record the conversation on a voice recorder, and state the results of the call the next day in a memo addressed to the manager. Recording a telephone conversation by itself is not a sufficient reason for dismissal for absenteeism, but will be additional evidence that the employer is right.

It is also necessary to send registered letters with acknowledgment of receipt to all known addresses where the employee may be, with a requirement to explain the reasons for non-appearance in writing within 2 days, and if this is not possible, contact the HR department or immediate supervisor by phone.

SCIENTIFIC EDITOR'S NOTE

It's better if there are letters valuable With inventory of the attachment(to exclude speculation on the part of the employee) and, of course, with notification of delivery.

WHAT IS CONSIDERED A SHALKING?

Dictionary

Absenteeism— absence from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as absence from the workplace without good reason for more than four hours in a row during the working day (shift) (subparagraph “a” "Clause 6, Part 1, Article 81 of the Labor Code of the Russian Federation).

There is no exhaustive list of valid reasons for an employee’s absence from work. To assess an offense, one should be guided by judicial practice:

1. Good reasons absence from work, courts in some cases consider:

• visiting a lawyer to get advice on violation of labor rights (Decree of the Moscow Regional Court dated November 24, 2011 in case No. 33-26558);
• being on leave without pay when the employee is entitled to such leave by law in accordance with Part 2 of Art. 128 of the Labor Code of the Russian Federation (Appeal ruling of the Kemerovo Regional Court dated August 17, 2012 in case No. 33-7790);
• illness of the employee, including in the absence of a certificate of incapacity for work (Appeal ruling of the Supreme Court of the Republic of Mordovia dated February 21, 2013 in case No. 33-426/2013);

SCIENTIFIC EDITOR'S NOTE

Let us note that there is also opposite judicial practice, for example, Ruling of the Chelyabinsk Regional Court dated July 10, 2014 No. 11-7179/2014 recognizing the abuse of the right of an employee not notifying the employer of his temporary disability and the absence in this case of obstacles to the dismissal of an employee at the initiative of the employer.

• fire, short circuit, emergencies, natural disasters (Appeal ruling of the Khabarovsk Regional Court dated March 1, 2013 in case No. 33-1372/2013).

2. For unjust reasons clearly admit:

• unauthorized termination of work before the expiration of the employment contract (Article 79 of the Labor Code of the Russian Federation) or notice of dismissal (Part 1 of Article 80, Article 280, Part 1 of Article 292 and Part 1 of Article 296 of the Labor Code of the Russian Federation);
• unauthorized use of days off or unauthorized going on vacation (subparagraph “d”, paragraph 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (as amended on September 28, 2010).

The above lists are not exhaustive - it is impossible to foresee all life situations, but by focusing on them, you will be able to more objectively assess the degree of guilt of the employee.

HOW TO DEAL WITH A SHUTTER

According to the Labor Code of the Russian Federation, the employer has the right to dismiss an employee for absenteeism (subparagraph “a”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation), but is not necessarily obliged to do this. Moreover, in accordance with Part 5 of Art. 192 of the Labor Code of the Russian Federation, when imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account.

Extraction

from the Labor Code of the Russian Federation

Article 193. Procedure for applying disciplinary sanctions

Before applying disciplinary action, the employer must request a written explanation from the employee. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up.

Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action.

Disciplinary action is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees.

A disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.

For each disciplinary offense, only one disciplinary sanction can be applied.

The employer's order (instruction) to apply a disciplinary sanction 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 a corresponding act is drawn up.

A disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes.

ADVICE

If you are not sure that the employee is absent without good reason, we recommend periodically calling him in the presence of witnesses, drawing up reports on the results of negotiations, and also periodically (for example, once a month) sending registered letters demanding an explanation for absences.

If the employee is actually absenteeism, you should write a memo addressed to the head of the organization detailing all the circumstances that qualify the employee’s absence as absenteeism, and attach to it all available documents (absence certificates, notifications of delivery of registered letters or returned letters, employee memos , clarifying the circumstances of non-appearance, etc.). These documents are the grounds for dismissing an employee for absenteeism, and All of them must be listed in the dismissal order. The date of dismissal of the employee will be the date the head of the organization signs the order to dismiss the absentee (Parts 3 and 6 of Article 84.1 of the Labor Code of the Russian Federation). In the order (as in the work book and personal card), the entry about the reason and basis for dismissal must exactly repeat the wording set out in the Labor Code of the Russian Federation (“dismissed/dismissed for absenteeism”).

The situation with missing workers is ambiguous:

NOTE

It is prohibited to fire pregnant women, even if the fact of absenteeism is confirmed!

THE EMPLOYEE IS FIRED. WHAT'S NEXT?

Part 2 Art. 84.1 of the Labor Code of the Russian Federation obliges the employer to familiarize the employee with the dismissal order against signature, and part 4 of the same article - to issue a work book on the day of dismissal.

According to Part 6 of Art. 84.1 of the Labor Code of the Russian Federation, if an employee is fired for absenteeism, the employer is relieved of responsibility for storing the work book, but there is an obligation to issue it no later than three days from the date of receipt of the employee’s written request.

On the dismissal order, a note should be made about the impossibility of bringing its contents to the attention of the employee due to his absence from work (Part 2 of Article 84.1 of the Labor Code of the Russian Federation). We recommend making a similar entry in your personal card.

Regardless of the grounds for dismissal, on the day of dismissal you must make a full settlement with the employee: pay all due wages, as well as compensation for unused vacation. If the employee does not have a bank card, the accrued amounts are deposited.

Strict adherence to all the measures described in this article will help you avoid mistakes when parting with truants and prove your case in court.

Conclusions:

1. A clear record of absence will help if the fact of absenteeism is confirmed over time, and will not hurt if the employee brings a certificate of incapacity for work.
2. Failure by an employee to provide explanations is not an obstacle to applying disciplinary action. When imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account.
3. Regardless of the penalty applied, it is necessary to strictly observe the procedure prescribed in Art. 193 Labor Code of the Russian Federation.

Accordingly: temporary disability with benefits, temporary disability without pay or absenteeism.

Accordingly, there is no need to send an employee fired for absenteeism a notice of the need to pick up his work book - Note scientific editor.