See more
Publication date: 16.05.2024
active and purposeful military lawyer with more than 4 years of experience
An employee of an enterprise appealed to the Labor Department of the Main Directorate of State Labor in Dnipropetrovsk region with a request to provide an explanation regarding the lawful actions of his former employer upon dismissal from the enterprise, since the employer dismissed the employee for absenteeism, while according to the employee, the employer blocked the pass to the enterprise and deliberately did not allow him to the workplace, recording at the same time in the time sheet "PR" - absenteeism.
Therefore, the absence of an employee from work without valid reasons (absenteeism) is by its very nature a gross violation of labor discipline and, as a result, entails the imposition of one of the types of disciplinary sanctions — reprimand or dismissal, in compliance with the rules established by Articles 147-149 of the Labor Code of Ukraine.Absenteeism is a violation of labor discipline, for which Article 147 of the Labor Code of Ukraine provides for bringing the employee to disciplinary responsibility, including the imposition of such a type of disciplinary sanction as dismissal, which must be carried out in compliance with the rules established for the application of disciplinary sanctions.
In accordance with paragraph 4 of Article 40 of the Labor Code of Ukraine, the owner or the body authorized by him (hereinafter referred to as the employer) has the right to terminate the employment contract with the employee in the event of absenteeism without valid reasons, including in the event that the employee is absent from work for more than three hours during the working day.
The dismissal procedure for absenteeism must take into account not only the general rules and procedure for the dismissal of employees (part one of Article 47, Article 116 of the Labor Code), but also the rules and procedure for the dismissal of employees at the initiative of the employer (part three of Article 40, Article 43 of the Labor Code), as well as the terms of application, rules and procedure for imposition, announcement of disciplinary penalties (Articles 147, 148, 149 of the Criminal Code), namely:
— only the body authorized to hire this employee has the right to dismiss an employee for absenteeism;
— it is possible to fire an employee for absenteeism only with the prior consent of the elected trade union body;
— it is possible to fire an employee for absenteeism immediately after the absence, but:
1) no later than a month after the discovery of this absenteeism;
2) no later than six months from the date of absenteeism;
3) no later than one month from the date of obtaining the consent of the trade union body for dismissal;
— if a decision has been made to dismiss an employee for absenteeism, then another disciplinary penalty — a reprimand — cannot be applied to this employee for the same absenteeism.
The employee's absence must be recorded when keeping a daily (variable) record of the use of working time.
The absence of an employee can be recorded in another way, for example, by an automated ticketing system. At the same time, it should be remembered that the "absence of an employee at work" is considered to be the employee's stay outside the territory of the enterprise or object, where he, in accordance with his work duties, must perform the work assigned to him. Therefore, the absence of an employee at the workplace, but not at the enterprise, is not considered absenteeism and it will not be possible to fire him.
If the reasons for the employee's absence are not clarified or are clarified, but there are doubts about the veracity of the employee's explanations, additional measures should be taken to document the evidence of the absence.
First of all, the immediate supervisor of the absent employee must write a report letter to the head of the enterprise, outlining all the circumstances.The head of the enterprise, after reviewing the report of the immediate supervisor of the "absentee", must make a decision to further investigate the reasons for the employee's absence from work and determine the executors of the investigation.
The person entrusted with the further investigation must draw up an act on the employee's absence from work. Employees who have the opportunity to confirm the absence or presence of a "truant" at the workplace during the entire working day or part of it are involved in drawing up the report. It is necessary to collect additional documentary evidence of the employee's absence: time sheets, which are kept on the basis of issued passes or other documents; information of the automated system of recording the arrival/departure of employees; copies journals in which employees sign when coming to work, etc.
If the employee does not show up at work for several days in a row and he or his relatives cannot be contacted, then it is necessary to visit the employee at home. It is advisable to involve several people in the visit, including a representative of the labor team. The result of the visit is formalized in an act.
Dismissal for absenteeism is one of the types of disciplinary penalty, therefore, before imposing such a penalty, the employer must demand written explanations from the violator of labor discipline (Part 1 of Article 149 of the Labor Code).
Immediately after the employee appears at work, a person authorized by the employer (as a rule, an employee of the personnel service) must invite the employee to provide a written explanation for the absence from work. If the employee refuses to provide written explanations regarding the reasons for absenteeism, it is necessary to draw up an appropriate act.
All documents regarding absenteeism by an employee are submitted for review by a body that, in accordance with Article 147 of the Labor Code, has the right to impose disciplinary sanctions, namely, a collegial body or an official who is given the right to make a decision on hiring an employee.
You may be interested in reading articles on such topics as: collection of debt from wages recovery of wages through court recovery of wage arrears recovery of wages recovery of wages in court recovery of wages through court
Since, in accordance with the second part of Article 149 of the Labor Code, only one disciplinary sanction can be applied to an employee for each violation of labor discipline, the head of the enterprise has the right to announce a reprimand to the violator or to fire him.According to Article 43 of the Labor Code, the termination of the employment contract pursuant to Clause 4 of Article 40 of the Labor Code must be done only with the prior consent of the elected body (trade union representative) of the primary trade union organization of which the employee is a member.
To obtain such consent, the employer must submit a substantiated application to the head of the elected trade union body to terminate the employment contract with the employee. The elected body of the trade union organization, in turn, considers the employer's application to terminate the employment contract with the employee within a fifteen-day period.
The employer's submission must be considered in the presence of the employee. Consideration of the submission in the absence of the employee is allowed only with his written consent. At the employee's request, another person, including a lawyer, can act on his behalf.
If the employee or his representative does not appear at the meeting, consideration of the application is postponed until the next meeting within the time limit determined by Part 2 of Article 43 of the Criminal Procedure Code. In case of repeated non-appearance of the employee (his representative) at the meeting without valid reasons, the application may be considered in the absence of the employee.
According to parts five and seven of Article 43 of the Labor Code, the elected trade union body must notify the employer of the decision in writing within three days after its adoption. The decision of the elected trade union body to refuse to grant consent to the termination of the employment contract must be justified.
If the three-day period for notifying the employer is missed, it is considered that the elected trade union body has given its consent to the termination of the employment contract with the employee.
Since dismissal for violation of labor discipline, including absenteeism, is a disciplinary sanction, the employer's decision to choose dismissal as a measure of disciplinary sanction must be formalized in the form of an order imposing a disciplinary sanction.
Draft orders on the imposition of disciplinary sanctions are prepared by personnel services employees on the basis of the following documents:
— the employer's decision to impose a fine; - documents confirming the fact that the employee is absent from work; - explanatory note of the employee who committed a violation of labor discipline;
— minutes of a meeting of an elected trade union body or a written decision of a trade union representative.
After the employer signs the order on the imposition of disciplinary penalties, it must be registered in the log of registration of orders on the imposition of disciplinary penalties.In accordance with the fourth part of Article 149 of the Labor Code, the employee must be informed of the order imposing a disciplinary penalty on him under his personal signature.
Dismissal of an employee is formalized by order. Draft orders on dismissal for absenteeism are prepared on the basis of the order on the imposition of disciplinary sanctions and the protocol of the elected trade union body. After being signed by the employer, the order must be registered in the personnel order registration log.
All days of absenteeism and days of actual work up to and including the day of the employee's dismissal are recorded in the time sheet of the dismissed employee. The report is sent to the accounting department together with copies of the disciplinary and dismissal orders. On the basis of these orders and the time sheet, the accounting department must charge the employee his due salary and compensation for unused vacation days. A record of dismissal is entered in the labor book by an employee of the department, personnel. The employee must be informed of the dismissal order under his personal signature. On the day of dismissal (last day of work):
— a full settlement must be made with the employee (Article 116 of the Labor Code);
— the employee must be issued with a properly executed work book (Part 1 of Article 47 of the Labor Code) and a certified copy of the dismissal order (Part 2 of Article 47 of the Labor Code).An employee cannot be dismissed for absenteeism during his absence, given that such an employee has not appeared at work for a long time (for example, more than two weeks), and the employer does not have any information about his whereabouts and the reasons for his absence.
In view of Article 149 of the Labor Code, the receipt of written explanations is a mandatory prerequisite for the application of disciplinary sanctions. In connection with the impossibility of proving the absence of an employee without valid reasons, it is impossible to dismiss him according to paragraph 4 of Article 40 of the Labor Code.
Therefore, in order to prevent the employer from unjustifiably dismissing an employee, when dismissing an employee due to absenteeism, it is important to follow the entire dismissal procedure. The employer must bring to the attention of the employees the documents establishing labor duties, working hours, etc., under personal signature, draw up interim documents in accordance with the requirements of the legislation, and observe the terms of bringing to disciplinary responsibility.
