The worker appears at work and what to do. Written agreement on vacation time with the employer is in the interests of the employee. Registration of dismissal for long absence: main difficulties

All employees are entitled annual holidays. And almost everyone uses them, only not everyone returns to work - some find another job, some get sick, and some skip work. And most importantly, when an employee does not show up for work, “don’t act out of the blue.” Today we’ll tell you how an employer should behave in various related situations.

Situation 1

Let's start from the very beginning simple option: the employee, while on vacation, wrote a letter of resignation.

Let us recall that according to the rules of Art. 80 of the Labor Code of the Russian Federation, an employee must notify the employer of his desire to quit no later than two weeks in advance, unless a different period is provided for by labor legislation. For example, the notice period for employers has been reduced for seasonal workers and for those who have entered into contracts for up to two months - no less than three days.

If the employee calculates everything correctly, most likely, the last day of vacation will be the day of dismissal. But it could turn out differently:

if the notice period for wanting to resign ends before the end of the vacation, the employee must be fired on the day the notice period ends;

if the remainder of the vacation is less than the notice period, the employee must return to work.

Let's consider both options.

The notice period ends before the holiday

We recommend not issuing a termination order. employment contract the next day after receiving the employee’s application. If you do this, the employee’s right to withdraw the application will be violated. And he can do this right up to the day of dismissal (Article 80 of the Labor Code of the Russian Federation).

For example, an employee is on vacation from 09/01/2017 to 09/28/2017. 09/08/2017 the employer received ordered letter with a notification of delivery, which contained a letter of resignation. The day of dismissal in this case will be 09/22/2017. It is on this day (and not on the day the vacation ends) that all documents for the employee’s dismissal must be completed, including issuing an order. On the same day, you must send a notification about the need to appear for a work book or agree to send it by mail. If this is not done, it is possible:

you will have to pay the employee lost wages for the entire period of delay in issuing the work book;

administrative liability will arise under Part 1 of Art. 5.27 Code of Administrative Offenses of the Russian Federation - a fine of 50,000 rubles;

you will have to redo the documents for dismissal, since the day of dismissal in case of delay in issuing the book will be the day of its issuance.

If an employee receives a salary on a card, on the day of dismissal it is necessary to transfer to it all amounts due to the resigning employee. If the employee received his salary at the cash desk, you need to send a notification about the need to receive the final payment. In this case, the employer can keep money in the cash register for no more than five working days (clause 6.5 of Bank of Russia Directive No. 3210-U dated March 11, 2014). If after five days the employee still does not show up for the money, the unclaimed salary must be deposited, that is, returned to the bank.

For your information: if an employee quits before the end of the working year, for which he has already received vacation, vacation pay for unworked days must be withheld from his salary (Article 137 of the Labor Code of the Russian Federation). However, this does not apply to study leave. If an employee resigns during such leave, amounts paid for him cannot be withheld.

In addition, since the employee quits before the end of the vacation, it is necessary to adjust. Let's give an example.

Employees do not always come for documents, so it can be sent by mail (of course, only with the written consent of the employee). How, in this case, to record the issue of the book in the book of accounting for the movement of work books and inserts in them?

This situation is not regulated by law, so in practice two options are applicable:

1. In column 12 of the book they write that the work book was sent by mail and indicate the date of mailing. Some indicate the date of receipt of the book by the employee - it is indicated in the notification of delivery, which is returned to the employer.

2. In column 12, enter the date the employee received the letter with the work book, and in column 13 they write that the book was sent by mail, indicating the date of dispatch.

Please note that when sending a book via mail, be sure to keep the employee’s written consent to send it, a receipt for sending a registered letter, and a notification of delivery to the employee.

If an employee on vacation comes to collect documents on the day of dismissal, this is best option for the employer, since he will immediately produce everything necessary actions related to dismissal (will familiarize the employee with the dismissal order, issue work book etc.), and the employee will personally sign in the book of accounting and movement of work books and inserts in them.

The notice period ends after the holiday

In this case, the employee must return to work and work from the end of the vacation until the end of the notice period. But if this does not happen - the employee has not returned from vacation - do not rush to fire him.

The first step is to find out the reason for his absence, and then, depending on it, make a decision: if the employee did not return after vacation for an unexcused reason, he skipped work, so to speak, then the employer has the right to take disciplinary measures up to and including dismissal (more on this a little later). If the reasons for absence are valid, for example, the employee was ill, then no measures need to be taken - he must be fired after the notice period for dismissal has expired.

Situation 2

The employee did not return after vacation and does not explain the reason. This situation is more complicated than the first. Why? Because not everything is so simple. The employer will have to find out why the employee did not come to work. In any case, if an employee does not show up for work on the first or even the second or third day after vacation, do not rush to issue a dismissal order for absenteeism (many employers do this) - this is fraught with negative consequences. Which ones? Suppose an employee is in a hospital in serious condition and could not notify the employer of absence from work. If he is fired, and then it turns out that the reason for the absence is valid, the court will reinstate the employee and demand that he be paid for the time he was forced to miss and pay compensation for moral damage.

To make a decision regarding an employee, it is necessary to ask him for an explanation of the reasons for absence. This is easy to do if he does return to work, even after a week or a month. What if he never showed up?

In this case, we recommend sending him a registered letter with notification or a telegram, in which you ask him to appear at work and give an explanation of the reasons for his absence. Of course, give him time for this, for example ten days or a couple of weeks from the moment he received the letter. Let's give an example of requesting an explanation in a case where the employee never showed up after vacation.

Alexander Antonovich!

We ask you to report to work and provide a written explanation for your absence from work since September 19, 2017. We ask you to respond within 10 calendar days from receipt of this letter.

Director

Ivanov

I. I. Ivanov

If the answer does not come in fixed time and the employee himself does not show up for work, you can try to go to his home and find out the circumstances of his absence from work, so to speak, personally. However, this is not at all necessary.

Let us emphasize: every day when an employee did not show up for work must be recorded, for example, by an act drawn up in the presence of witnesses. Absence from the workplace must be noted on the working time sheet (form T-12 or T-13) letter code“NN” or digital “30” – failure to appear for unknown reasons (until the circumstances are clarified). Accordingly, wages are not accrued for these days. After finding out the reasons for the absence, the report card will have to be adjusted by correcting the marks to code “B” (temporary disability) or “PR” (absenteeism). At the same time, do not forget to indicate in the “Ticket Type” line that it is corrective and enter the correction number.

Let us note one more nuance that should be taken into account if the employer decides to fire an employee who has not returned from vacation for absenteeism: the timing of disciplinary action. According to para. 3 tbsp. 193 of the Labor Code of the Russian Federation, disciplinary sanction is applied no later than one month from the date of discovery of the offense, not counting the time:

employee illness;

being on vacation;

necessary to take into account the opinion of the representative body of workers.

What is considered the day the offense was discovered is explained in paragraph 34 of Resolution No. 2: the day the offense was discovered, from which the month period begins, fromreads the day when the person to whom the employee is subordinate for work (service) became aware of the commission of an offense, regardless of whether he is vested with the right to impose disciplinary sanctions. It is important that the immediate supervisor learned not just about absenteeism, but that absence from work had no good reasons.

That is month period we begin counting from the moment when the employer learns that the reasons for absence are not valid - when the absentee wrote an explanatory note or refused to do so.

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

So, if the employee never shows up and does not contact the employer in any way, the only option left is dismissal: after the procedures described above, an order to terminate the employment contract is issued.

Question:

From what date to dismiss an employee under paragraphs. “a” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, if he did not come out after vacation for a month or two and never showed up at work?

Answer:

Let us turn to Part 3 of Art. 84.1 of the Labor Code of the Russian Federation, according to which The day of termination of the employment contract in all cases is the last day of work of the employee, with the exception of cases when the employee did not actually work, but after him, in accordance with this Code or other federal law, retained place of work (position).

If the employee never returns to work, the day of dismissal will be the last day of his work, that is, the day preceding the first day of absenteeism. In our case, this is the last day of vacation. The date of the dismissal order may not coincide with the date of dismissal, this is normal.

Since it will not be possible to familiarize the employee with the order (after all, he is not at work), it is necessary to make a note about this in the order (Article 84.1 of the Labor Code of the Russian Federation). Let us note that in the situation under consideration, it is also necessary to send a notice of the need to appear for a work book or agree to have it sent by mail.

Situation 3

The following situation may also arise: an employee, while on vacation, wrote a letter of resignation, and the employer’s notice period ends later than the end of the vacation, for example, a week. But the employee does not go to work after the end of the vacation, but appears only the day before the end of the notice period. The employer has asked for an explanation of the reasons for absence, but the employee is stalling and does not respond. What should an employer do? Unfortunately, nothing can be done here. You will have to fire the employee due to his at will, no matter how much the employer would like to fire him for absenteeism. Why? Because in such a situation, the employer will not be able to comply with the rules for bringing disciplinary liability, in particular, to provide two days for explanations, as required by Art. 193 Labor Code of the Russian Federation.

Upon expiration of the notice period for dismissal, the employee has the right to stop working. And if the employer does not terminate the employment (does not issue an order, does not issue a work book, does not make the final payment, etc.), the court will recognize his actions as a violation of labor legislation, even though the employee actually committed absenteeism.

While on vacation, an employee may decide to resign and write a statement in such a way that the last day of vacation is the day of dismissal. In this case, you need to prepare documents for dismissal on the last day of vacation (or the last day of expiration of the notice period, if it ends before vacation) issue a dismissal order, make an entry in the work book and carry out other actions related to dismissal.

If an employee does not return to work after vacation and the employer does not have information about the reasons for absence, it is necessary to take measures to clarify the circumstances. If there is no information for a long time or if an employee’s explanations are received, from which it clearly follows that he committed absenteeism, dismissal can be initiated for a disciplinary offense. In this case, the rules for bringing to disciplinary liability must be strictly observed.

Very often, for some unknown reason, employees do not come to work. At the same time, without notifying the bosses about the reason for his absence. What to do if an employee does not show up for work? Let's talk about this in a little more detail.
It is necessary to immediately understand what is “lateness”, “absenteeism”, “absence of an employee from the workplace”. All these terms are explained in labor legislation. Let's start with the most common one.
Late – common reason nervousness and dissatisfaction of superiors. There are a lot of reasons for employees being late - a traffic jam, an accident, a natural disaster, a banal broken alarm clock or a train that arrived at the wrong time. Large companies jealously monitor the working hours - at checkpoints there are often validators that collect information about the arrivals and departures of employees into an electronic database. However, being late is not a punishable act by an employee. Of course, the boss can force the employee to write an explanatory note and deprive him of the bonus. But for a one-time or non-systematic tardiness, the employee does not face anything except financial measures, and here’s why: according to current legislation, absenteeism is the absence of an employee from the workplace for four or more hours in a row without prior warning to management. That is, an employee who burst into the office 3 hours 59 minutes after the start of the working day is not a truant, but a latecomer. However, it should be noted that an employee’s absence from the workplace does not always mean absenteeism. The legislation identifies a number of cases when an employee may not officially appear in the organization. This
- time spent on sick leave;
- passing exams, defending a diploma, master’s thesis, and so on;
- summoning an employee to court or law enforcement agencies (because these services have a reasoned requirement);
- force majeure circumstances ( natural disasters, weather conditions, etc.).
It is worth focusing on the last point – force majeure circumstances. An employee who likes to sleep in the morning may think that if the Ministry of Emergency Situations sent him a text message in the evening that a storm warning is expected in the morning, then he doesn’t have to go to work in the morning - after all, it’s force majeure. However, judicial practice shows that force majeure is usually recognized as cases where an employee tried to get to work, but due to circumstances force majeure(flooded crossing, snowstorm, several trees falling onto the road, blocking the exit of public transport) I couldn’t. Also, if there is a real threat to the life and health of an employee (flooding settlement, fires near the place of work, and so on). Absenteeism is not considered to be an employee’s absence from work due to the employer’s failure to fulfill his duties, in particular, non-payment of wages for 15 days or more (but only with prior notice to the employer).
However, if the employee does not have a valid reason for absence from work, he did not take exams/was not on call from law enforcement agencies/was not on sick leave, it is necessary to draw up the appropriate documents, namely, an act of absence of the employee from the workplace. Most often, this document is drawn up by lawyers, personnel officers, secretaries or the head of the department in which the truant has been identified. But, as mentioned above, this fate often falls to the occupational safety specialist.
It should be remembered that in order to legitimize this act, a specially created commission of external members of the labor collective is necessary - these can be absolutely any specialists and workers. It is important that, in addition to the author of the document, there are at least two of them (in total, the document must have three signatures, or four if it is endorsed by the director).
The report must be drawn up no later than a month after the recorded case of absence from work. Otherwise, the document loses its legal force due to the statute of limitations.
An employee's absence from work report is not a standard document. Therefore, it is recommended that the order establishing the commission approve its own forms of acts (absenteeism, absence from work). If the documents have not been approved within the organization, it does not matter, the act can be drawn up in any form and even by hand. It is only important that the act reflects the following information - the name of the enterprise where absenteeism was recorded, the composition of the commission and the number of the order by which it was created, an explanatory note (if any) from the employee who committed the offense.
The act is drawn up in two copies, one copy is given to the absentee employee by any accessible method– by hand, by mail or telegraph. The main thing is that there is evidence that the employee was notified (otherwise, the employee can appeal the decision on disciplinary action in court by preparing some paperwork about his “forced” tardiness).
However, if the employee subsequently provides documents confirming a valid reason for his absence from the workplace, the act will not be considered evidence of the employee’s guilt.
But if the employee is not 4+ hours late, but does not come to work at all for a day, two, a week?..
In this case, a Certificate of Absence from Work is drawn up. It is compiled for each day the employee is absent. After all, it may well turn out that the employee is in some serious trouble and cannot report his condition (had an accident, was kidnapped, is in intensive care, and so on). An act of absence from work differs from an act of absence from work in that it records the absence of an employee at a time when the reason for the employee’s absence is not yet known. If the reason for the absence was some personal incident of the employee (a common example is binge drinking), then these documents will be required during the paper procedure for issuing disciplinary punishment/withholding wages/dismissal.
For personnel records management, as well as maintaining time sheets, these acts will serve as the basis for entering code “30” or NN in the employee’s working day column. It is also worth noting that it is recommended to send the employee’s absence report to work daily to the employee’s place of residence. This event will help clear things up if the case comes to a court hearing.
In form and composition, the act of absence from work is identical to the act of absence from work. A special commission consisting of at least three people, witness signatures, employee notification line. The document is also drawn up in two copies of any form (if the form has not been established previously).
In the future, if an employee comes to work without explaining his absence with a valid reason, acts of absence from work are facts on the basis of which it is necessary to launch a procedure for disciplinary punishment of the employee, up to and including dismissal.
If an employee, upon coming to work, provides the employer with written evidence of valid circumstances for his absence, then he is released from any liability and continues to work on the previous schedule.
It should be noted that violations labor discipline, not subject to punishment in the form of disciplinary liability, there is also a punishment consisting of the imposition of a monetary restriction. However, in this matter it is necessary to remember that the salary is an inviolable part of the salary, on which the employer is not able to impose punishment (except in cases of absenteeism or failure to fulfill his duties). labor responsibilities). What remains for the employer? The only legal measure of influence is through deprivation of bonuses. A bonus is not an employer's responsibility, but an employee's privilege that must be earned. Often people who have been deprived of bonuses by their employer for some reason come to complain to the State Labor Inspectorate. However, in this case, both labor inspectors and legislation are on the employer’s side - he is free to give a bonus in the amount he sees fit. It is also necessary to remember that payments for overtime, travel and other types of work are not a bonus part of the salary, and the employer cannot encroach on them either. Therefore, it is necessary to be extremely careful about the “blow to the ruble”, because if the punishment is unlawful, the court will order to pay the withheld part, and the State Labor Inspectorate will impose a fine under Article 5.27 of the Labor Code. administrative offenses, with a maximum fine of up to 50,000 rubles per legal entity.

1. An employee came to our organization who worked for two months and after that stopped coming to work. He refuses to write a resignation letter of his own free will. Can he be fired for absenteeism?
2. Under what articles? Labor Code and on what grounds can an employee be dismissed?

Nelly Zaraiskaya, Syktyvkar

Expert opinion

1. To confirm the employee’s absence from the workplace, it is recommended to draw up a report. The Labor Code does not directly provide for such a need, but without this document it is almost impossible to prove the fact of absenteeism. IN judicial practice an approach has been developed that requires the employer to provide documentary evidence of absenteeism. As a rule, the act indicates the last name, first name, patronymic and position of the employee, the date and time of his absence from work, the time the act was drawn up, as well as the last names, first names, patronymics and positions of the employees who signed the act. Companies that use usually additionally provide a printout of the readings of this system.

If the employer has not documented the fact of the employee’s absence, the court has every reason to satisfy the employee’s claim to declare the dismissal illegal. If the time of drawing up the report is not indicated, then it is unclear exactly when the inspection was carried out and, accordingly, for how long the employee was absent from the workplace. In cases where the employer draws up a report only at the end of the working day, it happens that the employee subsequently declares in court that he was at the workplace in the first half of the day and is ready to bring witnesses who will confirm this. Therefore, the evidence base will look more reliable if the act clearly indicates the periods of absence of the employee or if two or three acts are drawn up with a break of several hours depending on the length of the working day or shift (for example, every 3-3.5 hours).

If the employer has not documented the fact of the employee’s absence, the court has every reason to satisfy the employee’s claim to declare the dismissal illegal...

Accurate execution of acts will not help if they do not reflect reality or distort it. Thus, a situation where an employer deliberately prevents an employee from accessing work cannot be considered absenteeism.

The following follows from this: firstly, the employer is obliged to request a written explanation from the employee before applying a penalty. It is better to do this in writing and hand the request to the employee against signature indicating the date of receipt. You can also draw up an act stating that explanations have been demanded from the employee in front of witnesses. If the request is sent by mail, it is important to retain evidence of its sending ( postal receipt, description of attachment). The Labor Code does not establish a specific period within which an explanation must be requested from the employee. Thus, the law does not prohibit demanding an explanation some time after the day of absenteeism. Secondly, after requesting an explanation, the employer must wait two working days and only after this period can make a decision on dismissal. This rule applies even if the employee immediately refuses to give an explanation, since it is possible that he will change his mind. If, after two days, no explanations are provided, this is not an obstacle, and in this case an act is drawn up.

2. The reasons why an employer can fire an employee are clearly defined.

Dismissal is possible in accordance with paragraph 5 of Article 81 of the Labor Code “Repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction.”

The employee’s failure to comply must be repeated and without good reason. Moreover, the employee must already have been subject to disciplinary action.

According to , a disciplinary offense is the failure or improper performance by an employee, through his fault, of the work duties assigned to him.

Disciplinary action is allowed only in the form of reprimand or dismissal on appropriate grounds.

In order to dismiss an employee on the basis of paragraph 5 of Article 81 of the Labor Code, his failure to fulfill his labor duties must be:

a) repeated;
b) without good reason.

If there are valid reasons, the employee must put them in writing. And at the same time, the employee must already have a disciplinary sanction formalized accordingly.

Paragraph 4 of Article 81 states that the director, his deputies and the chief accountant can be dismissed when the owner of the organization changes. The new owner does not have the right to fire ordinary employees under this article.

When an organization is liquidated or the activities of an individual entrepreneur are terminated, everyone is subject to dismissal, including pregnant women and young mothers.

According to paragraph 3 of Article 81 of the Labor Code, “Unsuitability of an employee for the position held or work performed due to insufficient qualifications confirmed by certification results,” an employee can also be dismissed.

To identify the incompetence of an employee, a special certification commission must be created, which, as a rule, includes the deputy director of the organization, a representative of the personnel department and the immediate supervisor. It is published about its implementation special order. The subject is given a task that does not go beyond job description corresponding to his position. Even if the members of the commission somehow agree among themselves, and the task may be obviously impossible to complete (for example, in terms of deadlines), you can write a complaint to labor inspection and challenge the certification results in court. A final report is drawn up on the results of the certification.

One of the most common reasons for dismissal is absenteeism.

Absenteeism is considered absence from the workplace without good reason during the entire working day (shift), regardless of its duration.

The most important valid reason is. If, after returning to work, an employee does not provide sick leave, then the employer may give him absenteeism.

According to subparagraph a of paragraph 6 of Article 81 of the Labor Code, the basis for termination of an employment contract at the initiative of the employer may also be the absence of an employee from the workplace without good reason for four hours in a row.

This article also lists other reasons on which an employee may be dismissed, for example:

• appearing at the workplace or on the territory of the organization in a state of alcohol or drug intoxication;
• disclosure of secrets protected by law that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee;
• committing theft of someone else's property, embezzlement, intentional destruction or damage at the place of work;
• violation by an employee of labor protection requirements, if this violation entailed serious consequences or knowingly created a real threat of such consequences.

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There are often cases when an employee stops going to work without formalizing his resignation and without explaining the reasons for his sudden disappearance. Rjob.ru found out what administrative punishment a fugitive faces, how to find a negligent employee, and under what circumstances an employer has the right to terminate an employment contract in court.

He left, but did not promise to return

According to experts in the field of HR, a person’s discipline directly depends on the position he occupies. Thus, lawyers, managers, economists and programmers rarely go missing. Most often, loaders, couriers, waiters and security guards go underground.

“Basically, three categories of workers stop going to work. Firstly, these are people engaged in unskilled labor. They go on binges and may forget about work. The second category is skilled workers, but not very far from the lumpen. They are solely concerned with finding money. As soon as they find out that somewhere they pay three kopecks more, they rush to a new place. Rounding out the top three are part-time workers, who do not always understand that part-time work, according to Article 282 of the Labor Code of the Russian Federation, refers to regular and not temporary work,” notes Evgenia Rivkina, head of the HR department of CORISassistance LLC.

Often those who decide to quit do not go to work. At the same time, they are little concerned about the fact that their work book remains in the personnel department, and payments are due for unspent vacation days.

Deputy head of the HR department of KSK Group, Aida Ibragimova, emphasizes that there are missing employees in almost every company. Their number depends on the activities of the organization. There are many escapees in companies with large production and sales personnel, as well as in large call centers.

Regularly among the missing employees are young professionals for whom the company is their first place of work. Such employees stop going to work because they do not have time to combine it with their studies or get a new job.

It happens that employees ignore their job responsibilities after a conflict with their superiors. Many deliberately do not come to service.

What should an employer do if an employee does not come to work?

The problem is that the employer does not have the right to fire a missing employee under the law. Absenteeism may be a good reason, but it still needs to be established and formalized. An employer can fire a person only after providing him with an explanation of the reasons for his non-appearance. If a company fires a truant without asking for an explanation, he can appeal the decision in court. As a result, the court reinstates the employee due to violation of the dismissal procedure. The employer in such a situation must pay the average salary for the period of forced absence and accrue vacation days.

What to do? First of all, the colleagues and superiors of the missing employee try to reach him by phone, write letters to email, ask friends and relatives (if their contacts are available). CEO Natalya Storozheva, the Center for Business and Career Development "Perspective", also advises sending a letter on the organization's letterhead to the truant's home address. The letter must be registered, with acknowledgment of receipt.

“The principle of protecting employers from unscrupulous employees has been adapted to market realities. If previously an employee was afraid of being fired for absenteeism, now he is not. This means that you will often have to deal with the problem of absenteeism. I advise employers to be sure to describe all the nuances of working in the company. If you have employees working remotely, then do not be lazy to indicate the time of mandatory communication; no one is stopping you from stipulating that if an employee does not communicate within four hours during working hours, this behavior can be regarded as absence from the workplace with the ensuing consequences,” comments HR Director of exeStation, an expert in the selection of freelance professionals at project work to solve business problems Olga Shulgina.

If the employee does not show up for work, take action on the same day. Don't forget about new technologies. Take a look at the employee's pages at in social networks. Article 193 of the Labor Code of the Russian Federation will help you.

“If attempts to find an employee do not lead to anything, the employer must record the fact of the employee’s absence with a special act, which must indicate the following data: full name of the employee, his position, date of absence. The act must be signed by the persons who compiled it, as well as by employees (necessarily at least three people) confirming the information contained in the act. Such a document is drawn up every day throughout the entire period of absence of the employee,” adds Natalya Storozheva.

You can visit the missing employee and demand from him explanatory note. If the truant could not be found at home, then this information must be entered into the report. The document must be certified by the signature of one of the neighbors, says SimbirSoft HR Director Ekaterina Artyushina.

As the head of the Moscow Human Rights Center Mikhail Salkin notes, the employer will have to keep the work book of the missing employee and maintain his personal file. However, reporting for pension fund And tax office such an employee will not be affected, since payments for absenteeism are not due.

The employer must record employee absences from work on the time sheet. In this case, the employee’s wages are not accrued. If necessary, the employer may hire a new employee under a fixed-term employment contract to replace the absentee. Officially, absence of an employee from the workplace for more than four hours in a row can be considered absenteeism.

“When the fact of absenteeism is established, the employer has the right to unilaterally decide on punishment for the employee. The employer can dismiss such an employee under Article 81, paragraph 6, part 1 in connection with a single (or repeated) violation of labor discipline, or for the first time limit himself to a reprimand,” explains Natalya Storozheva.

By the way, according to the Labor Code of the Russian Federation, the employer is not obliged to either force the absentee to return to work or fire him (Part 2 of Article 22 of the Labor Code of the Russian Federation). Also, the law does not require the employer to search for a missing person, and the Labor Code does not contain instructions for searching for missing employees.

Whose side is the law on?

If an employee does not show up for work for a long time, the employment contract with him can only be terminated in court. In court, you must provide evidence that the employer made every effort to find the employee. This is where the Failure to Appear document comes in handy.

The employer goes to court if there is no information about the employee’s whereabouts during the year. In this case, the employment contract can be terminated under clause 6, part 1, art. 83 of the Labor Code of the Russian Federation (termination of an employment contract due to circumstances beyond the control of the parties).

If the truant’s actions caused direct material damage to the employer, the latter has the right to go to court to demand compensation.

If you are faced with a situation where your employee does not show up at work for several weeks in a row and does not communicate, act in accordance with the rules of the Labor Code. And do not make a decision to dismiss before establishing the reason for the employee’s absence from work.

Having considered the issue, we came to the following conclusion:
Until the reasons for an employee’s absence are clarified, it is not recommended to fire him for absenteeism, since if the reasons for his absence from work were valid, then the dismissal will be illegal.
If a decision is made to dismiss an absent employee, the procedure for imposing a disciplinary sanction, as well as the dismissal procedure provided for by the Labor Code of the Russian Federation, must be fully followed.

Rationale for the conclusion:
In accordance with paragraphs. "a" clause 6 of part one of Art. 81 of the Labor Code of the Russian Federation, an employment contract with an employee can be terminated at the initiative of the employer in the event of such a one-time gross violation of his labor duties as absenteeism. Absenteeism is 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).
From the above definition it follows that the main criterion for absenteeism is the absence of valid reasons for the employee’s absence from work. It is necessary to understand that the Labor Code of the Russian Federation does not contain a list of reasons that are valid. Accordingly, in each case it is necessary to assess the “respectability” of a particular reason (definition of the SC according to civil cases Omsk Regional Court dated October 20, 2004 N 33-3509).
In other words, since there is always a possibility that he is absent for a good reason, it is not recommended to fire an employee for absenteeism until the circumstances of his absence from work are clarified. In addition, it is possible that after clarifying the reasons for the employee’s absence from the workplace, the employment contract with him will need to be terminated due to other circumstances (for example, due to circumstances beyond the control of the parties: in connection with his conviction to a punishment that precludes the continuation of his previous work, in accordance with a court verdict that has entered into legal force; in connection with the death of an employee, etc. (Article 83 of the Labor Code of the Russian Federation)).
In such cases, the employer must record the fact that the employee is absent from the workplace. To do this, an act is drawn up in any form, which is signed by several witnesses. Such an act can be drawn up either on the first day of the employee’s absence from work or on any of the subsequent days. In addition, the fact of the employee’s absence should be recorded in the work time sheet, for which the mark “absenteeism for unknown reasons” (NN) is placed on it, which then, when it becomes clear that there were no valid reasons for absence, is changed to the mark “absenteeism” " (ETC).
From the moment of fixation in personnel documents absence of an employee from the workplace, there is every reason not to accrue to the absent employee wages and, therefore, not fulfill any obligations to the budget in this regard. In a situation where the employer has every reason to believe that the reasons for the employee’s absence from work are not valid, he has the right to dismiss him on the basis of paragraphs. "a" clause 6 of part one of Art. 81 of the Labor Code of the Russian Federation for absenteeism.
If there is no reliable information about this, then, if necessary, another person can be hired to fill the position of an absent employee under a fixed-term employment contract with the wording: “for the period temporary absence an employee who, in accordance with the law, retains his place of work" (part one of Article 59 of the Labor Code of the Russian Federation). You can also entrust his work to another employee without releasing the latter from the work specified in the employment contract (Article 60.2 of the Labor Code of the Russian Federation). An option is also possible temporary transfer any employee for the position of a temporarily absent employee (Article 72.2 of the Labor Code of the Russian Federation). Before you do anything further actions, the employer should find out the reasons for the employee’s absence from the workplace. Of course, the employer is not obliged to take measures to search for missing employees. However, to avoid illegal dismissal simple measures should be taken to find out the whereabouts of the employee (for example, send a registered letter with return receipt requested to the employee’s last known address with a request to explain the reasons for absence from work, go to the employee’s place of residence, if possible, communicate with the spouse, relatives and neighbors to find out the reasons for the absence employee, report to the internal affairs body).
Further actions of the employer depend on the nature of the information obtained as a result of such a search. If an employee has not shown up at work for a long time and attempts to find him have not been successful, then the employer can file an application with the court to declare the employee missing. In accordance with Art. 42 of the Civil Code of the Russian Federation, a citizen may, at the request of interested parties, be recognized by the court as missing if during the year there is no information about his place of residence at his place of residence. If an employee is declared missing in court, he may be dismissed under clause 6 of part one of Art. 83 Labor Code of the Russian Federation. In this case, a corresponding entry is made in the employee’s work book with reference to the court decision recognizing the person as missing (letter Federal service on labor and employment dated 09/05/2006 N 1552-6).
Let us recall that when dismissing an employee for absenteeism, the burden of proving the fact of its occurrence lies with the employer, who must have evidence of its commission by the employee (clause 38 of the resolution of the Plenum Supreme Court RF dated March 17, 2004 N 2 “On the application by courts Russian Federation Labor Code of the Russian Federation", hereinafter - Resolution of the Plenum of the Armed Forces of the Russian Federation). If the employer finds out that the reasons for the employee’s absence from work are not valid, he has the right to fire him for absenteeism. In accordance with Article 192 of the Labor Code of the Russian Federation, absenteeism is gross violation employee of work duties, that is disciplinary offense, and dismissal is a disciplinary sanction for its commission. This means that when dismissing for absenteeism, the employer must comply with the procedure for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation. If this procedure is violated, then in the event of a lawsuit, the court will most likely recognize the dismissal as illegal, even if it is proven that the employee committed absenteeism.
First of all, the employer must meet the deadlines for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation.
Dismissal for absenteeism can be done no later than 1 month from the date of its discovery, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees, and no later than 6 months from the date of its occurrence.
If an employee commits a long absence, the monthly period for detecting the offense should be calculated from last day absenteeism, and not from the first (see, for example, the ruling of the Ryazan Regional Court dated April 25, 2007 N 33-580; Generalization of the practice of consideration in the 1st half of 2008 by the courts of the Saratov Region of cases of termination of an employment contract at the initiative of the employer and on other grounds , not related to the will of the employee).
Second the most important condition proper registration of dismissal for absenteeism is correct documenting (general order dismissal of an employee for absenteeism is given, for example, in the letter of Rostrud dated October 31, 2007 N 4415-6).
Article 193 of the Labor Code of the Russian Federation requires that even before applying a disciplinary sanction, the employer requires an explanation from the employee in writing. It is extremely difficult to request written explanations from an employee who does not show up at work, and to do this in such a way that it can then be proven that such a request for explanations has occurred. Therefore, it is almost impossible to fire an absent employee for absenteeism. For this reason, many experts recommend waiting until the employee shows up at work and does not provide supporting documents.
If the employer nevertheless decides to dismiss the employee for absenteeism in his absence, then in case of litigation, he must collect evidence that he fulfilled all his duties in the process of applying a disciplinary sanction.
In Art. 193 of the Labor Code of the Russian Federation does not say exactly how the employer must request a written explanation (at a personal meeting or by sending a letter with notification). Therefore, we can suggest the following course of action. The absent employee is sent by registered mail with a notification request to give written explanations about the reason for his absence from work. If two working days have passed since the employee received the letter, and the employee has not provided an explanation, then a corresponding report is drawn up. Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action, that is, dismissal. In this case, the postal notification must bear the signature of the employee himself - this proves that the employee received the employer’s request.
A situation where a postal notice was returned with a note that “no one opened the apartment doors” cannot be considered a proper request for a written explanation. Therefore, in such a situation, we do not recommend filing a dismissal for absenteeism. During a period of long-term absence of an employee, the employer may periodically send him letters demanding an explanation, waiting for the employee to personally sign the notice.
Based on the act of absence from the workplace, as well as a written explanation or an act of the employee’s failure to provide an explanation, the employer issues an order (instruction) on dismissal.
The order is announced to the employee against signature within three working days from the date of its publication, not counting the time he is absent from work. The absent employee should be sent a telegram or registered letter with a notification inviting the employee to familiarize himself with the dismissal order and to receive a paycheck and work book. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act is drawn up.
Please note that the date of the dismissal order must be the date of its actual issuance within the time limits for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation. But the date of dismissal should be the last day of work of the employee, except for cases where the employee did not actually work, but in accordance with the Labor Code of the Russian Federation or other federal law, his place of work (position) was retained (part three of Article 84.1 of the Labor Code of the Russian Federation).
According to Art. 84.1 of the Labor Code of the Russian Federation, on the day of termination of the employment contract, the employer is obliged to issue the employee a work book. 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 this notification, the employer is released from liability for the delay in issuing the work book.
In addition, the employer is not responsible for the delay in issuing a work book if the last day of work does not coincide with the day of registration of termination labor relations upon dismissal of an employee for absenteeism.
By written request For an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee’s application.
Upon dismissal, the employer is obliged to make a settlement with the employee. In Art. 140 of the Labor Code of the Russian Federation states that payment of all amounts due to the employee from the employer is made on the day of the employee’s dismissal. If the employee did not work on the day of dismissal, the corresponding amounts must be paid no later than next day after the dismissed employee submits a request for payment.
Since the reasons for absence from work in the situation under consideration are unknown, it cannot be completely excluded, for example, that the employee is on sick leave.
However, it should be borne in mind that when implementing the guarantees provided by the Labor Code of the Russian Federation to employees in the event of termination of their employment contract, the general legal principle of the inadmissibility of abuse of rights, including by the employees themselves, must be observed. In particular, it is unacceptable for an employee to conceal temporary disability during his dismissal from work. If the court establishes that the employee has abused his right, the court may refuse to satisfy his claim for reinstatement at work (while changing, at the request of the employee dismissed during a period of temporary incapacity, the date of dismissal), since in this case the employer should not be responsible for the adverse consequences that occurred as a result of unfair actions on the part of the employee (clause 27 of the Resolution of the Plenum of the Armed Forces of the Russian Federation).
If an employee dismissed for absenteeism applies to the court with a demand for reinstatement at work and presents a certificate of incapacity for work, the presence of which he hid from the employer at the time of requesting an explanation from him, then a signed notification of delivery of a letter in which the employer was interested in the reasons for his absence from work, will help the employer prove in court the fact of abuse of rights by the employee.
As explained in paragraph 41 of the resolution of the Plenum of the Armed Forces of the Russian Federation, if, when resolving a dispute about the reinstatement of a person dismissed for absenteeism and the recovery of average earnings for the period of forced absence, it turns out that the absence from work was caused by an unexcused reason, but the employer violated the dismissal procedure , the court, when satisfying legal requirements, must take into account that the average salary of a reinstated employee in such cases can be recovered not from the first day of absence from work, but from the day the dismissal order is issued, since only from this time absenteeism is considered forced.

Prepared answer:
Expert of the Legal Consulting Service GARANT
Arzamastsev Alexander

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Alexandrov Alexey

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.