There can be many reasons for an employee not showing up at work. Most often, employers perceive this action as absenteeism and apply disciplinary sanctions (reprimand, reprimand, dismissal) to those who are absent. This is due to the fact that labor legislation does not contain a clear definition (list) of valid and unexcusable reasons for absence from work. The employer independently determines, based on the documents and explanations provided by the employee, how important the reason for absence is.
But be that as it may, in most cases there are no problems with determining whether an employee was absent (for example, overslept) or did not show up to the workplace for a good reason (for example, had an accident). However, there are situations in which it is difficult to assign a cause to one or another category of importance. This includes the arrest of an employee.
Is the reason for failure to appear important or not?
If an employee is detained or arrested, then even with his best wishes, he will not be able to go to work for some time. Therefore, many employers will have a question whether this absence is considered absenteeism or not.
Arrest (detention) is a valid reason for absence from work. Thus, the servants of Themis indicate that arrest does not apply to disrespectful reasons for an employee’s absence from the workplace, since in this case nothing depends on his will, desire or unwillingness to fulfill his work duties (resolution of the Presidium of the Moscow Regional Court dated October 13, 2004 No. 631) . It is also noted that the detention or arrest of a person is carried out for committing illegal actions that are not related to disciplinary offenses, for which the employer can apply disciplinary sanctions.
Accordingly, such absence will not be considered absenteeism, which means that disciplinary sanctions, in particular dismissal, cannot be applied to the employee. However, there is no need to pay for the period of arrest.
Based on Article 129 of the Labor Code, wages are remuneration for the employee’s work. Since the arrested person cannot perform his duties, there is no basis for calculating his wages. An exception may be work during house arrest. When a preventive measure in the form of house arrest is chosen against a person, the judge’s decision indicates whether the arrested person can leave the house, use a computer, whether Internet access is allowed, and so on. Thus, if an employee is allowed to communicate with colleagues, use the telephone and the Internet, then with the permission of the employer he can work from home and receive a salary for it. Also, people under house arrest are sometimes allowed to attend work.
It is worth noting that the employee retains his average earnings if the period of arrest coincides with non-working periods for which the average earnings are retained (for example, with annual paid leave).
Reference
Based on the provisions of Article 121 of the Labor Code, the period an employee is under arrest is included in the total vacation period, since the reason for absence from work is valid. Also, according to the Regulations on the specifics of the procedure for calculating benefits (approved by Decree of the Government of the Russian Federation of June 15, 2007 No. 375), the time of arrest is included in the calculation period for payment of benefits.
What is an administrative violation?
An administrative offense is a legal violation that causes harm:
- public order;
- management order;
- rights and freedoms of citizens.
Attention
There is liability for an offense (Article 3.2 of the Code of Administrative Offenses).
An administrative offense is less dangerous than a criminal offense. Organizations and individuals can participate. Moreover, not only the court, but also tax services, the state housing inspection, etc. can hold people accountable.
Attention
For a misdemeanor there is no punishment in the form of a criminal record.
How to apply?
The legislation does not contain a clear procedure for registering an employee’s failure to appear at work due to detention (arrest). Therefore, it is best in this case to act according to generally established rules.
It is necessary to draw up a report regarding the employee’s absence from work. The document indicates the date and exact time of the employee’s absence, as well as the time the report was drawn up. The document must be drawn up daily before the employee returns to work or is dismissed (for example, the employee is sentenced to imprisonment). You can also receive a report or memo from the immediate supervisor of the arrested person regarding the employee’s failure to appear.
Next, you need to decide how to fill out the time sheet. If the employer does not yet know the reason for the employee’s absence, then the letter code “NN” (failure to appear for unknown reasons) or the digital code “30” should be entered on the timesheet. The same code can also be entered in cases where it is known from the very beginning that the employee has been arrested. This is due to the fact that the unified form No. T-12 (approved by Resolution of the State Statistics Committee of the Russian Federation dated January 05, 2004 No. 1) does not provide an alphabetic or numeric code to indicate an employee’s failure to appear at work due to arrest.
Also sometimes they use the letter code “NB” (digital “35”) - suspension from work. But this is not very correct. Thus, suspension from work occurs only under certain circumstances, to which arrest does not apply (for more details, see the article “How to suspend an employee from work” in the journal “Practical Accounting” No. 8, 2013). This code should be entered in the report card only if the court suspended the arrested person from work and only from the moment specified in the resolution.
Let us remind you that the employer, on the basis of the Procedure for using unified forms of primary accounting documentation (approved by Resolution of the State Statistics Committee of Russia dated March 24, 1999 No. 20), has the right to make changes to the time sheet. Consequently, he can enter an additional code indicating the absence of the employee due to arrest; these additions must be formalized by an appropriate order.
If the organization has developed its own forms of primary accounting documents (from January 1, 2013, the forms contained in the albums of unified forms of primary accounting documentation are not mandatory for use), including time sheets, then the symbol should be selected from those that were installed independently.
Thus, on the report card, regardless of whether the reason for absence is known or not, you can enter the code “NN” or the code entered in the organization to indicate failure to appear due to arrest. If the reason for the absence was not immediately known and the timesheet has already been marked “NN”, and the company has entered a special code, then the document can be corrected.
After returning to work, the employee must provide documents confirming the reason for absence. Depending on the measure of intersection, they can be:
- protocol on administrative detention. Such detention is carried out for a period of three to 48 hours, that is, a maximum of two days. A protocol is drawn up if an employee is detained on suspicion of committing an administrative offense. The document must indicate the time of detention and release. A copy of the protocol is issued to the employee at his request. If he has not received a copy, he should be asked to do so;
- certificate of serving an administrative arrest in a special detention center. A preventive measure in the form of administrative arrest is chosen by the court if it is established that the person has committed an administrative offense. Such arrest is established for a period of up to 15 days and includes the period of administrative detention. The certificate is issued in the form given in Appendix No. 11 to the Internal Regulations of Special Reception Centers for the Detention of Persons Arrested under Administrative Order (approved by Order of the Ministry of Internal Affairs of Russia dated June 6, 2000 No. 605dsp). It must indicate the period of arrest, including the period of detention;
- certificate of release from custody. It is issued to an employee arrested on suspicion of committing a criminal offense. The document must indicate who detained the employee, the date and time of detention and release.
During the period of arrest of an employee, the employer has the right to take another employee in his place, for example, under a fixed-term employment contract, part-time (internal and external) or by way of temporary transfer.
What payments are due?
An employee dismissed for an administrative offense is entitled to only two standard payments:
- Compensation for unused vacation. Vacation can be used after six months of work, unless other terms are specified in the contract.
- Wages for days worked. But while the employee is considering proposed vacancies, wages are not accrued, since the employee is suspended from work.
Other payments are due only if they are separately specified in the employment contract.
When can you be fired?
If an employee has been punished in the form of administrative arrest, then he cannot be dismissed on the basis of paragraph 8 of part 1 of Article 83 of the Labor Code. Thus, dismissal in this case must occur due to disqualification or other administrative punishment, which excludes the possibility of the employee fulfilling his duties under the employment contract. However, administrative arrest does not exclude the possibility of working, but only suspends it for a while.
But what to do with an employee against whom a criminal case has been opened and even arrested during the investigation. Such an employee cannot be fired either. In this case, the employer will have to wait for the verdict. Thus, with a court verdict of acquittal, the employee can continue to work, but with a guilty verdict, in which a sanction is chosen that excludes the opportunity to work (for example, imprisonment), he must be fired.
Dismissal occurs on the basis of the employee's conviction to a punishment that precludes the continuation of the previous job, in accordance with a court verdict that has entered into legal force (Clause 4 of Article 83 of the Labor Code of the Russian Federation). The day of dismissal on this basis is the day the court verdict comes into force, and not the last actual day of work (decision of the Supreme Court of the Russian Federation dated December 17, 2010 No. 52-B10-3). Since the employee’s conviction may not become known immediately, the dismissal order must be drawn up only after receiving reliable information (for example, a copy of the verdict). The date of issue of the order will be the date of receipt of documents confirming the conviction of the employee. An entry is made in the work book for the same date.
The order should indicate the impossibility of familiarizing the employee with it. Regarding the issuance of a work book, on the day the order is issued, a notification must be sent to the employee’s place of registration about the need to appear for it or give written consent to send the book by mail. If consent is given, the book must be sent to the address indicated by the employee. If there is no agreement, then the labor remains in the organization until required.
The payment can be transferred to the employee’s salary card or issued to the employee’s representative (only with a power of attorney).
Important
The work record book and amounts due to the employee can be issued to his representative, but only with a power of attorney certified by a notary or the head of the correctional institution.
The employee may also be sentenced to suspended imprisonment. However, in most cases, such punishment will not prevent him from working, which means he does not need to be fired.
Temporary deprivation of the right to engage in certain activities or hold certain positions may also serve as an obstacle to the employee’s performance of his or her job duties. In this case, the organization will receive a notification from the criminal-executive inspection along with a copy of the verdict. Accordingly, if an employee held a position or carried out activities that are now prohibited for him, then the employer must comply with the requirements of the sentence.
In this case, the employee can be transferred to another job or fired on the above grounds. This must be done within 3 calendar days after receiving a notice from the penal inspection. If a decision has been made to dismiss, then in the work book, in addition to recording the dismissal, you must also make an entry stating that the employee is deprived of the right to hold certain positions (engage in certain activities). The same entry is made if the employee was transferred to another position, but quits (for example, of his own free will) before the expiration of the ban on holding certain positions.
Irina Svetlichnaya
, lawyer, for the magazine “Moscow Accountant”
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Employee Notification
The main nuance of dismissing employees in the event of bankruptcy of an enterprise is the moment of communicating information about the upcoming termination of employment relations. The fact is that filing an application to declare an organization bankrupt does not yet give the right to serve notices on its employees. The procedure for dissolving an enterprise takes place in several stages, including supervision, external management, financial recovery, and bankruptcy proceedings. At one of these stages, a “turnaround” to new decisions of the founders may be formed. In this case, the liquidator has the right to conduct a conversation with the employees he needs, who could work until the moment of exclusion from the unified state register. This category will include accounting employees (prior to the submission of the liquidation balance sheet) and personnel specialists (office work, latest orders, etc.).
Bankruptcy proceedings are an urgent reason to begin mass layoffs of employees. True, up to this point, everyone should already be calculated, except for those raising children under 3 years of age (this can be men), persons with disabilities and women who have already registered in the early stages of pregnancy, but have not yet registered for maternity leave.
The procedure for notifying employees implies strict adherence to deadlines. Often, employees may deliberately “postpone” the deadline for familiarization, counting on litigation. At this point, personnel should pay special attention in order to reduce the risks of an already insolvent enterprise.
So, if there is a regular dismissal due to bankruptcy of the organization, the employee is given notice no earlier than two months. At the same time, the employee should not expect that he will work until the last day of closing. The process of liquidation of a company is measured over several months, so the employer will quite reasonably distribute employees across capacities that have actually ceased to operate to be excluded from the company’s lists.
If the executive body does not have time to plan the time of termination of employment contracts, sooner or later it will have to do this en masse. In this case, he will have to do this no less than three months before the planned date of payment, but also inform the regional employment center. The latter action is mandatory while simultaneously excluding 15 percent of the total number.
The notification, in accordance with current legislation, must be drawn up in two copies. If the employer has taken into account all the deadlines and has second copies in the office work signed by the employees, he automatically excludes judicial precedents. The second way out of the situation is to reach a certain compromise with the employee (dismissal ahead of schedule). One way or another, a person will have to face the need to find a job. For some specialists who have good experience and knowledge, it is not always profitable to lose good offers from enterprises that are still operating.
