Is it possible and how to fire a missing employee?

It happens that a company employee who has worked at the enterprise for a long period of time and has established himself as a responsible and conscientious specialist, one day does not show up at work. In such a situation, management should not make hasty decisions and document this fact as absenteeism in order to subsequently dismiss the subordinate under the article. There is a possibility that an accident occurred with the worker, and in such a situation, only dismissal of the missing employee would be legal.

How to dismiss employees in standard situations

Labor legislation provides for a clear procedure for registering the dismissal of employees. Upon termination of an employment relationship, the management of the enterprise performs several standard actions:

1. Issues a dismissal order, familiarizes the dismissed employee with its contents and asks him to sign that he has read the document. If the employee refuses to read the order, an act of refusal to read the order by management is issued, signed by witnesses.
2. Makes entries in the employee’s personal card and submits the document for signature to the employee.
3. Draws up the calculation, transfers it to the accountant for making cash payments (last salary, compensation for unused vacation, severance pay, etc.).
4. Makes an entry about the dismissal in the work book, indicates the reason and date of termination of the contract, and transfers the document to the dismissed person.
5. Completes the papers necessary for storage in the archives of the enterprise.

Now let's return to the issue of formalizing dismissal in the case when an employee goes missing - in this situation, termination of the employment contract is carried out somewhat differently. Firstly, the sequence of actions of the company's management differs. Secondly, additional measures are added to the above algorithm - measures are taken to find the subordinate and establish contact with him

.

In addition, circumstances beyond the control of the participants (hired employee and company management) become grounds for termination of employment relations. This basis is regulated by Article 83 of the Labor Code of the Russian Federation and is accepted in 2 cases:

1. When it turns out that the employee has died (if there is a death certificate issued by the civil registry office).
2. If an employee is declared missing as a result of search activities (if there is a court order).

Employer's procedure

Before dismissing an employee if he does not show up for work, it is necessary to establish the reason for the person's absence. Only after all the circumstances have been clarified can the employer decide whether it is possible to terminate the employment contract.

Search for an employee

The absence of an employee from the workplace can be due to a number of reasons, such as urgent hospitalization, detention by law enforcement agencies and many others. In this situation, the manager should take the following actions:

• make an attempt to call the subordinate using the phone number indicated in the personal card or, if possible, contact his relatives;
• if he does not pick up the phone, send a letter (preferably registered with a notification) to the employee’s address asking him to explain the reason for his absence; if he does not receive a response, a report with the appropriate content should be drawn up;
• to ask the police about a missing person, not only his relatives, but also colleagues can write a statement to the police department, on the basis of this search work will begin;
• if after a year or a longer period the search by the police has not brought results, you can, as an interested party, go to court to have the missing employee declared missing.

If the employee has close relatives, they are the ones who take the measures necessary to search for the missing person and obtain documents confirming the fact of the loss. The organization carries out the dismissal process based on the documents they submit. If the disappeared citizen does not have relatives or they do not contact the official authorities for some reason, then the necessary procedures are carried out by the company itself.

After filing a complaint with the police, the employer must have a tear-off coupon from the KUSP, indicating that they have contacted the official structure. The employer must retain this document and a copy of the application addressed to the police with a mark of receipt for subsequent procedures.

Having collected the entire necessary set of documents certifying that there were no deviations from the requirements of Article 193 of the Labor Code of the Russian Federation: a request for an explanation was sent to the employee, reports of its non-receipt were drawn up, there are acts confirming the person’s absence from the workplace, and also making sure that this prolonged absence is not has objective reasons, the employer has the right to terminate the employment contract.

A unified algorithm for processing the termination of an employment contract is specified in Article 84.1 of the Labor Code of the Russian Federation, which talks about familiarizing the employee with the order to terminate the employment contract under his personal signature. In the absence of the opportunity to bring this document to the attention of the employee or in the event of his refusal to familiarize himself with it under his signature, a corresponding entry is made in the order (instruction). The main documents when dismissing a missing employee consist of:

• an order in which the column for familiarizing the employee with it remains blank, and a reference to the court ruling is entered in the “Bases” column;
• work book of the dismissed employee with a record of the reason for termination of the employment contract.

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According to Article 84.1 of the Labor Code of the Russian Federation, the work book is subject to mandatory issuance, but since it is impossible to hand it over to the missing employee, it is handed over to one of the relatives against a signature or sent to him by mail based on his application. If it is impossible to transfer this document to relatives, then it remains in the organization until required, its storage period must be at least 75 years.

What should an employer of a missing employee do?

If an employee does not come to work for unknown reasons and without prior warning, the responsible employee records this fact - at the end of the work shift, in the presence of employees of other departments (witnesses), an act is drawn up, which should indicate the absence of the subordinate and the time during which his was not at work

. The HR employee makes a note on the working time sheet indicating that the worker is absent for unknown reasons.

When the employee returns to work and provides evidence of the reasons for his absence, the HR employee must create an adjustment time sheet. If the reasons for absence from work were not valid, the law allows the employee to be dismissed on the basis of Articles 192 of the Labor Code of the Russian Federation, 193 of the Labor Code of the Russian Federation, 81 of the Labor Code of the Russian Federation.

If the employee never shows up at the enterprise, management should try to contact him and delegate his duties to another subordinate by:

• hiring a new employee to the company’s staff on the basis of a fixed-term employment contract, the condition of which is the termination of the employment relationship upon the return of the missing subordinate;
• assigning new responsibilities to another worker with mandatory amendments to the employment contract or signing an additional agreement to the contract;
• fulfilling the duties of a missing employee on oneself (relevant for small enterprises).

If an employee does not show up for work for unknown reasons and does not show up in the near future, the employer must act according to the following scheme:

1. Instruct the responsible employee of the HR department to take measures to establish contact with the missing employee (call the subordinate at the number mentioned in his personal card, or find contact with the worker’s family).
2. Send a registered letter with acknowledgment of delivery to the employee’s residential address with a request for clarification of the reasons for the employee’s absence from the enterprise. If the post office reports that the letter cannot be delivered, or if the addressee does not receive the letter within 30 days from the date it was sent, it will be returned to the sender. The company should draw up an act stating the impossibility of obtaining an explanation of the reasons for failure to appear at the workplace (see Article 193 of the Labor Code of the Russian Federation).
3. Send a request statement about the missing employee to the internal affairs bodies to initiate search activities.
4. Wait for the results of the search operations of the Department of Internal Affairs. If after 12 months of waiting the person is still not found, you can file a lawsuit to declare the citizen missing (see Article 42 of the Civil Code of the Russian Federation). The claim is accompanied by a certificate of the investigative activities carried out by the Department of Internal Affairs with documents drawn up at the enterprise confirming the fact of the citizen’s failure to appear at the workplace.
5. Dismiss the missing employee after receiving a court order. Until this moment, it is impossible to dismiss a citizen (see Article 83 of the Labor Code of the Russian Federation).
6. Issue an order to terminate the employment contract with reference to the court ruling.
7. Make an entry in the work book about the end of the employment relationship. Grounds – clause 6, part 1, art. 83 of the Labor Code of the Russian Federation, recognition of an employee as missing.
8. Give the work record book to the family of the missing employee.

Truancy concept

According to the Labor Code, absenteeism means a subordinate’s deliberate failure to appear at the workplace without a valid reason . The Labor Code of the Russian Federation does not specify the duration of absenteeism, for example, days, weeks or months, only the duration is indicated - more than four hours.

Classic performance

In this case, the employer knows about the location of the subordinate, and he has the opportunity to exchange information with him at any time. The actions that need to be taken by someone who is absent from work are described in Article 193 of the Labor Code. The person must present the supporting document to the boss or write an explanatory note within two working days. The basis for this is a memorandum and a document previously drawn up addressed to the management, which records the number of missed hours at any particular time.

If there is no response from the employee, then a document that meets the relevant requirements is created, signed by those who compiled it and three eyewitnesses of this violation. Only after this the boss has the right to issue a reprimand order and record the date of failure to appear on the report card as absenteeism.

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Long-term (long-term) view

Here, the manager is not aware of the whereabouts of his subordinate employee for several days or weeks. As a result, it is not possible to contact him. To fire someone for absenteeism under the article, you need to wait until he shows up at work and only after that proceed to registration according to the standard . The law allows requests for reasons for failure to appear to be sent by mail to the address indicated in the employee’s personal file.

Registration of dismissal must be carried out strictly adhering to the Labor Code of the Russian Federation, otherwise the absenteeist may, through the judicial authorities, turn the situation in his favor. Thanks to this, he will have the opportunity to be reinstated in his position, as well as receive compensation. A total time of no more than one month is provided for publication and collection.

Consequences of absenteeism

Since the Labor Code of the Russian Federation does not include a list of objective reasons for an employee’s absence from work, in this case the manager will assess the seriousness of the reason for absence.
At the same time, the normative act must strictly regulate the start and end times of the working day at a certain workplace. When such a concept is absent in the documents, one should be guided by Article 209 of the Labor Code, which talks about the work area assigned to each staff unit of the organization. The employee is obliged to stay in it and perform the duties assigned to him, taken into account in the regulatory and technical documentation. If an employee does not show up for work, the employer may not fire him under the article for absenteeism, despite the fact that he has all the rights to do so. The outcome of the situation depends on the competence of the manager in this matter. When a subordinate regularly violates discipline, the need for this option arises to regulate the work.

The manager has the right to reprimand, reprimand or deprive the truant of bonus payments, and it is worth noting that the lack of bonuses is not considered a punishment. You need to know that the Labor Code provides for only one punishment for absenteeism. And if a penalty in the form of a reprimand is applied to an employee, then termination of the employment agreement for the same offense is prohibited.

Grounds for dismissing a missing employee

You can dismiss a missing employee for one of the following reasons:

A person, by a court decision made at the request of interested citizens and companies, is recognized as:

• missing persons
  according to Art. 42 of the Civil Code of the Russian Federation, if information about its location is not found within a period of up to 1 year;
• deceased
  according to Art. 45 of the Civil Code of the Russian Federation, if at the person’s registration address there is no information about his whereabouts for 5 years (if the circumstances of the person’s disappearance are related to a threat to his life or an accident - for 6 months).

The man is missing

If the police have not been able to find the employee within a year after the employer contacted them, the head of the enterprise can file a statement declaring the individual missing. The completed document is submitted to the court for consideration.

To confirm the data specified in the document, it is necessary to submit to the judicial authority a certificate of investigative measures regarding the failure of an individual to show up for work.

After the trial, the employer receives a decision allowing him to terminate the employment contract with the person. We offer an algorithm for how to fire a missing employee:

• on the basis of a court decision, issue an internal order to terminate labor cooperation with the disappeared employee;
• make a record of termination of the employment contract;
• indicate in the personnel documentation the reasons for dismissal (recognizing the employee as missing in action in accordance with the provisions of Article 83 of the Labor Code of the Russian Federation);
• issue the original work book to close relatives of the former employee.

If you find an error, please highlight a piece of text and press Ctrl Enter.

Common mistakes

Error:

The employee has gone missing and has not contacted the employer. The personnel service formalized the dismissal for reasons beyond the control of the parties to the labor relationship. There is no court order declaring the employee missing.

A comment:

Dismissal of a missing employee is possible only if there is a court order. If it is not there, the employee’s personal documents and work record book must be kept by the employer. The absence of a worker for unspecified reasons must be noted on the working time sheet.

Error:

The employee did not come to work for unknown reasons for 7 days. The employer initiated the dismissal of the missing employee due to repeated absenteeism.

A comment:

Until a court order is received regarding the disappearance of an employee, dismissal cannot be carried out. If it turns out that the employee was absent for a good reason and has documentary evidence of this, the employer, by court decision, will be obliged to reinstate him at work and pay compensation for forced absence.

Responsibility and consequences for employer and employee

First, let's talk about responsibility. It is important to understand that the employer in such a situation cannot legally bear any responsibility, but the missing employee bears it to some extent, since he:

• may be fired for absenteeism if found within a relatively short period of time;
• may be declared dead or missing.

Main consequences for the employer:

• the obligation to report the fact of the disappearance of a person to law enforcement agencies;
• the need to assign the duties of the disappeared person to another employee by order and with his written consent. Expanding the scope of work performed is rewarded with an additional payment, the amount of which is specified in the order;
• initiation, if necessary, of a judicial resolution procedure.

The consequences for the employee are clear from the logic of the material discussed.

Entry in the work book about dismissal due to recognition as missing

Answers to common questions about dismissing a missing employee

Question #1:

Is it possible to hire another employee in place of a missing employee on the basis of a fixed-term employment contract valid during the absence of a regular subordinate, but with the proviso that if the missing employee is fired, the new employee will remain employed?

Answer:

Yes, for this, a clarification should be made in the fixed-term employment contract that the new employee will be hired by the company on a permanent basis if the missing employee is dismissed.

Question #2:

Should a company conduct its own missing employee search procedures before initiating termination of a missing employee? Or should the employee’s family be involved in the search?

Answer:

Close relatives of the employee must take measures to search for their family member and obtain documentary evidence of his disappearance. The company must obtain a document from the family of the missing person. If the subordinate does not have close relatives, the employer must take the initiative and carry out the necessary procedures.

In what cases is such dismissal possible?

Let us immediately warn you that it will not be possible to find a clear answer in the law. According to statistics, people most often go missing in the following situations:

• during hostilities;
• as a result of kidnapping;
• in case of being captured;
• after serious natural disasters;
• as a result of an accident when a person actually died, but rescuers cannot find his body;
• the person may be a fugitive from justice.

Dismissal cannot occur contrary to legal norms, therefore:

• the deadlines stipulated by the norms of Article 42 of the Civil Code of the Russian Federation must be met (a person can be declared missing if there are no positive results of her search for one year) or Article 45 of the Civil Code of the Russian Federation (an individual is recognized as dead after completion of 5 -year period of fruitless searches by law enforcement agencies);
• Documentation of all actions is carried out (acts and management orders are drawn up);
• It is imperative to contact law enforcement agencies and submit an application to search for the person.

What to do when an employee returns

To the employee

As practice shows, not every employee can return to their workplace after “reappearing”, since it all depends on the reasons for the disappearance. The employee must:

• provide a court decision to cancel the decision to declare him missing in accordance with the provisions of Article 44 of the Civil Procedure Code of the Russian Federation and Article 280 of the Civil Procedure Code of the Russian Federation. It is possible to achieve this decision by providing comprehensive evidence that the person is exactly the person who went missing;
• provide instructions to the State Labor Inspectorate of the Russian Federation to restore the employee’s rights. This order is issued after a court decision and on the basis of written documented facts and reasons for absence (for example, captivity, kidnapping and other valid reasons);
• reach an agreement with the employer.

To the employer

It is clear that in most cases, missing employees are fired on Form T-8. After the employee appears and provides the above documents, the employer conducts an interview with the employee. The decision is made only after this, since it is necessary to analyze the validity of the reasons for the person’s absence from work.

If a positive decision is made in favor of the employee, then the employer follows the algorithm for hiring the person again, but it is also important to take into account the interests of the person who may have already been hired for this position after the dismissal of the missing person.

The current Russian legislation clearly regulates the rules for dismissing employees who are missing. Every employer must strictly adhere to these rules.

Dismissal of an employee and effective personnel management is the topic of this video:

Registration of dismissal for long absence: main difficulties

The concept of long-term absenteeism is not legally established.
The Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) provides a definition of absenteeism, but it is not tied to its duration by days, weeks or months. If an employee was absent from the workplace without good reason during the entire working day (shift), regardless of its duration, or at least for more than 4 hours in a row, then this is already considered absenteeism. Moreover, it does not matter whether such absence occurred at the beginning, middle or end of the working day (shift) (subparagraph “a”, paragraph 6 of Part 1 of Article 81 of the Labor Code of the Russian Federation).

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Since absenteeism refers to gross violations of labor duties by an employee, for which the most severe disciplinary sanction is provided - dismissal (Article 192 of the Labor Code of the Russian Federation), the author believes that there is no need to legislate the concept of long absenteeism. Since even if an employee is absent from the workplace for 1 working day (not to mention a week, a month or more), a strict disciplinary measure can already be applied - dismissal (termination of an employment contract at the initiative of the employer on the basis of subparagraph “a” of paragraph 6 of part first article 81 of the Labor Code of the Russian Federation).

To make it easier to navigate the issue that interests us, we will divide absenteeism into two conditional categories:

• classic, indicated in Art. 81 of the Labor Code of the Russian Federation, i.e. short-term, and
• long-term

So, having collected a complete set of documents confirming compliance with the requirements of Art. 193 of the Labor Code of the Russian Federation (requesting an explanation from an employee, drawing up reports of non-receipt of explanations, reports of the employee’s absence from the workplace), as well as making efforts to find an employee, as a result of which the employer came to the conclusion that the employee’s prolonged absence from the workplace is most likely , is not associated with valid reasons, you can begin the procedure for terminating the employment contract.

The general procedure for formalizing the termination of an employment contract is enshrined in Art. 84.1 of the Labor Code of the Russian Federation, according to which the employee must be familiarized with the order (instruction) of the employer to terminate the employment contract under his personal signature. In the event that this document cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under signature, an appropriate entry is made on it (marked with number 4 in Example 5).

The problem is that, according to Art. 84.1 of the Labor Code of the Russian Federation, 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 where the employee did not actually work, but in accordance with the Labor Code or other federal law, his place of work (position) was retained.

Based on this norm, the day of dismissal should indicate the last day of work, that is, the day preceding the first day of absenteeism. So, if an employee did not go to work on August 1 and did not show up at work over the next few days, then the day of dismissal should be indicated as July 31.

But then it turns out that the labor relationship between the employee and the employer ceased on July 31, accordingly, after this date the employee could no longer commit any labor offenses within the framework of the terminated employment contract. Consequently, dismissal for absenteeism cannot take place. In this regard, some experts propose to indicate in the dismissal order the date of termination of the employment relationship, which coincides with the date of issue of the order.

However, it is more correct, in our opinion, to indicate in the order the date of termination of the employment relationship as the employee’s last day of work, which will at least be in accordance with the provisions of Part Three and Part Six of Art. 84.1 Labor Code of the Russian Federation. This is exactly what we did in our samples of the order and work book (Examples 5 and 6): numbers 1 and 2 indicate the date of issue of the order and the earlier date of dismissal on the person’s last working day before his disappearance.

This point of view is also supported by the Federal Service for Labor and Employment. According to her letter dated June 11, 2006 No. 1074-6-1, “one of the grounds for dismissal for absenteeism (subparagraph “a”, paragraph 6, part one, article 81 of the Labor Code) may be the abandonment of work without a good reason by a person who has entered into an employment contract both for an indefinite and a definite period.

Confirmation of the correctness of this position is also contained in part six of Art. 84.1 of the Labor Code of the Russian Federation, according to which the employer is not responsible for the delay in issuing a work book in cases where the last day of work does not coincide with the day of registration of termination of labor relations upon dismissal of an employee on the basis provided for in subsection. “a” clause 6 of the first article. 81 or clause 4 of part 1 of Art. 83 Labor Code of the Russian Federation.

Of course, this point of view is more reasonable and is supported by Rostrud and the State Labor Inspectorate during inspections. However, the position regarding the coincidence in the dismissal order of the date of issue of the order with the date of termination of the employment relationship has a right to exist, since in cases where the dismissal order indicates the last working day as the date of termination of the employment relationship, disputes may arise in court on this issue, which may or may not be resolved in favor of the employer.

Thus, this issue has not yet been clearly resolved by law.

In practice, there are cases when, upon dismissal for absenteeism, which lasted for a month, the order on the basis of dismissal indicated only the report for one of the days of absenteeism, and the employee at the trial presented evidence for that very day of absence from the workplace (certificate from the emergency room and etc.), and he was reinstated at work by the court.

To avoid such situations, some experts recommend indicating in the dismissal order, for example, that “for absenteeism on August 01, 2014, for absenteeism on August 02, 2014 ... for absenteeism on August 09, 2014.” apply a disciplinary measure - dismissal. Since labor legislation does not contain restrictions on the possibility of applying one penalty for several offenses, if a truant worker presents supporting documents for 1-2 days of absenteeism, then he will no longer be able to justify himself for the rest.

What should not be forgotten when dismissing someone for absenteeism is the timing of the application of this disciplinary sanction.

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According to Art. 193 of the Labor Code of the Russian Federation, disciplinary action is applied no later than 1 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 required to take into account the opinion of the representative body of employees.

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A disciplinary sanction cannot be applied later than 6 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 2 years from the date of its commission. The specified time limits do not include the time of criminal proceedings.

It should be borne in mind that judicial practice has developed such a concept as “continued absenteeism,” which assumes that the moment of detection of absenteeism is not the day on which the employee’s absence was discovered, but the moment the investigation of the reasons for his absence is completed: it is at this moment that the offense is considered completed and discovered.

However, the court, when considering each specific dispute, can resolve this issue differently, so it is better for the employer to play it safe, and if evidence of absenteeism is collected, then try to register the dismissal within a month (that is, choose those dates of the employee’s absence from the workplace that are included in the monthly period before the date of issue of the order). What will get in the way here, first of all, is the period of waiting for a response to a request sent by mail.

Employment history

On the day the order is issued, a record of dismissal is made in the work book. The grounds for dismissal must be formulated in strict accordance with the Labor Code of the Russian Federation or other federal law and with reference to the relevant paragraph or article. See Example 6.

According to part six of Art. 84.1 of the Labor Code of the Russian Federation “in the event that it is impossible to issue a work book to an employee on the day of termination of the employment contract 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.”

Example 5 Order of dismissal for long absence

Thus, on the day the dismissal order for absenteeism is issued and an entry is made in the work book, the employer needs to send a letter or telegram to the employee about the need to appear for the work book or agree to have it sent by mail.

Example 6 Entry of dismissal of a missing employee in the work book

Short-term absenteeism: algorithm of actions

In case of short-term absenteeism, the employer, as a rule, knows the whereabouts of the employee or can establish it (for example, when, after missing 1 working day, the employee returned to work or when he does not appear at the workplace, but he can be contacted by phone, email, or through other employees, etc.).

The employer's procedure in such situations is clearly described in Art. 193 Labor Code of the Russian Federation. Before applying a disciplinary sanction, which in this case may be dismissal for absenteeism, the employer must request a written explanation from the employee. If after 2 working days the employee does not provide the specified explanation, then a corresponding act is drawn up.

At the same time, the employee’s failure to provide an explanation is not an obstacle to applying disciplinary action. An act of refusal to provide explanations is drawn up with the signatures of the employees present. It is also necessary to document the fact of the employee’s absence from the workplace on a certain day by drawing up a report or collecting other evidence (testimonies of witnesses, reports of the absentee’s immediate supervisor, extracts from the logbook at the checkpoint, etc.).

If the reasons given by the employee in the explanation for absenteeism are not considered valid by the employer or the employee refuses to give explanations, the employer has the right to apply disciplinary action in the form of dismissal. The employer's order to apply a disciplinary sanction is announced to the employee under his personal signature within 3 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 indicated order against signature, then a corresponding act is also drawn up.