Everyone knows the term "truancy". It is interpreted as skipping classes (work) for no good reason. Now it’s worth giving a definition to the concept of “compelled absenteeism” considered in this article. This is a work pass due to the employer (through his fault). For example, in a situation of illegal dismissal of an employee. The time period until it is restored to its previous position by a court decision is the time of forced absenteeism.
Payment for a given work pass
In the example considered above, it is worth emphasizing that moment that the employee has the right to file a lawsuit. If the result is positive (i.e., it will be satisfied by the court), the employer is obliged to reinstate this employee in his former position. In accordance with our labor legislation, he must also pay involuntary absenteeism (for the entire time) in the amount of the average amount of earnings that could be received by the employee for the same period in the performance of previous labor duties.
An important point is the use of official average earnings in the calculation. That is, in other words, in a situation where an employee receives salary "in an envelope", to determine the amount that is intended for involuntary absenteeism, only the “white” salary with all official bonuses, financial incentives will be taken into account.
In the situation under consideration, not only compensation for the time of forced absence is due, but also compensation for moral harm. That is, the employee has the right to demand compensation for moral damage caused by unlawful dismissal.
Calculation of the time period of the considered absenteeism
Dismissal Day is the last shift. Involuntary absenteeism (Labor Code of the Russian Federation) is calculated starting from the next day after receiving the relevant order regarding dismissal. In the case when an employee quits without going to work after vacation, the day of dismissal is the last vacation day.
It is worth clarifying that forced absenteeism is not always the result of illegal dismissal. For example, if the employer did not give out the workbook to the employee upon dismissal (as he should have done by law). For this reason, the employee was not able to submit this document to the new organization the next day (which must be submitted to the personnel department when hiring). In this regard, the employee suffers losses that arose due to the fault of the former employer, as a result of which he is entitled to compensation for involuntary absenteeism.
This is not the only situation when the employer must compensate for the employee's materially missed opportunity due to their incorrect actions. So, the recovery of compensation for involuntary absenteeism occurs if the employer incorrectly indicated the reason for the dismissal of the employee in the work book, as a result of which the latter was not accepted to a new job. This, of course, is possible provided that the employee proves the fact of refusal to accept a new job precisely through the fault of the former employer.
Forced absenteeism: judicial practice
Cases related to the unlawful dismissal of employees can be said to be quite popular today. This may include the incorrect registration by employers of dismissal for absenteeism, and the illegal dismissal of pregnant women, threats against employees in order to sign their letter of resignation of their own free will, in order to avoid paying the due legal compensation to these employees.Therefore, forced absenteeism due to the fault of the employer is also paid quite often (when the court makes a decision in favor of the illegally dismissed employee - the plaintiff).
Unfortunately, not all laid-off workers have knowledge on this issue, and therefore cannot protect their rights to reinstate in their previous position and compensation for involuntary absenteeism.
In this regard, the affected employee should immediately contact the appropriate qualified lawyer.
Forced absenteeism due to the fault of the employee
In fact, absenteeism is the absence of an employee at his workplace without good reason for more than 4 hours in a row. It is worth noting that if there is no clarification on the workplace in a particular labor contract, then it is impossible to consider a situation when the employee is not in his usual workplace, but in the company’s territory.
Punishment for missing work - disciplinary measures: reprimand, dismissal or remark. The right to choose the appropriate measure provided for by Russian labor laws and other federal laws is directly with the employer. He can also completely refuse any punishment. The concept of “forced absenteeism that occurred due to the fault of the employee” can be interpreted as skipping work for a good reason.
Dismissal under the relevant article for truancy under the law must be preceded by an employee’s written explanation. If the employer considers the reasons for absence from the workplace indicated by the employee to be disrespectful, he may order the dismissal. The employee may not agree with this decision, then he should contact the appropriate court, which will examine the question regarding the validity of these reasons (whether it should be considered absenteeism or not). However, there is a snag - there is no clear list of such good reasons in our labor law. But several groups can still be identified.
Good reasons: subjective, objective
The former are closely related to the individuality of the employee. This may include, firstly, the state of health. Moreover, evidence of a substantiated absence from your workplace may be as follows:
- doctor's appointment map (outpatient);
- a certificate from the attending physician that this employee was at the reception;
- sick leave.
Secondly, periodic medical examinations for certain categories of employees. Thirdly, the state of health of the child (the evidence is the same). Fourth, an employee cannot be dismissed for absenteeism if he takes part in a court hearing as a plaintiff, witness, juror. Confirmation - subpoena. This also includes a call to the police, the activities of a member of the commission (election). Fifth, the elimination of any communal accident in your home (except for routine inspections of ZhKO).
The objective reasons why an employee cannot appear at work are circumstances caused by all kinds of force majeure. It:
- weather;
- industrial accidents, disasters;
- emergency traffic situations;
- hostilities.
If the employer does not agree with these reasons, and the case comes to dismissal, then when the employee appeals to the court, according to statistics, the decision will be made in his favor (reinstatement at the previous place of work). The main thing is not to delay it, since the application for reinstatement at the previous job is submitted to the court within a month.
Reasons for a statement equated to valid
There are circumstances, the onset of which does not allow the employee to appear at his workplace. The employer must be warned about them in advance, as a result of which the employee is obliged to write a statement requesting him to have days off.According to our labor law, in response to it, the employer must provide several unpaid days (breaks):
- up to 5 - in situations such as the death of a loved one, a wedding, the birth of a child;
- up to 4 - to the employee - the parent of the disabled child;
- 1 per month - to an employee engaged in labor activities in rural areas;
- breaks - to working employees who have children under 1.5 years of age who are breastfed (artificial).
Collecting wages for the considered type of work permit
According to the Labor Code, involuntary absenteeism is a certain period of time within which an employee could not carry out his labor activity through the fault of the sole employer. Its reasons are also indicated there:
- Unlawful dismissal, subsequent reinstatement;
- incorrect execution of labor documents during the dismissal procedure.
The consequence of the above reasons is the recovery of involuntary absenteeism in cash in the form of average earnings for the entire period in a judicial proceeding. For this, it is necessary within three months from the date of receipt of information regarding a violation of the right to apply to the appropriate court. In disputable situations regarding dismissal, the deadline for submitting an application is reduced to a month (starting from the moment of delivery of the relevant order and issuance of the labor document).
Labor Code: List of Individual Disputes Based on Employee Applications
To be precise, article 391 is devoted to this. Such disputes are heard in the courts of general jurisdiction. Our codified labor law provides the following list of disputes regarding statements by different employees regarding:
- Their restoration to their previous work, regardless of the grounds for termination of the existing employment contract.
- Changes in the date (wording) of the specific reason for dismissal.
- Transfer to another kind of work.
- Payments for the period of time that an involuntary absenteeism took (the definition of this concept was presented earlier).
- Payments of the difference in salary for the time spent on performing below paid work.
- Illegality of actions (inaction) of the employer in the process of processing, protecting personal data of employees.
- Other individual disputes regarding labor.
Calculation of average earnings from the point of view of the legal aspect
As mentioned earlier, the employee is compensated for involuntary absenteeism. The average amount of earnings required to determine the payment of the period of time spent on a given work permit is established on the basis of the Russian codified legislative act on labor and the existing Regulation on the specifics of the procedure for calculating this indicator, which is approved by our Government.
His calculation - regardless of the operating mode - is carried out on the basis of the employee’s actual salary and the time actually worked out by him for the year preceding the time of payment. Other periods may also be indicated in the relevant collective agreement serving as a basis for calculating the average salary value (of course, provided that this does not worsen the existing position of employees).
The amount of payment, the period must be displayed in the court decision, writ of execution. It is permissible to reduce this amount by the corresponding amount of the expected severance pay, which was paid to the employee upon dismissal.
It is worth noting that payments for involuntary absenteeism (Labor Code of the Russian Federation) are made at the same time as the publication of the order regarding the cancellation of dismissal. The Supreme Court pointed out that the essence of reinstatement at a previous job is the cancellation of the legal consequences of the dismissal procedure by precisely refusing the relevant order, and not issuing another (reinstatement) after the court makes this decision.
Thus, the obligation of the employer regarding the payment of salaries for all forced absenteeism occurs during the cancellation of the order of dismissal and reinstatement of the employee in the previously held position. This payment is an integral part of the recovery process at the same place of work.
It is also worth noting that the employer has no right to independently reduce the amount that was appointed by the court. And the salary received by an illegally laid-off employee in another company (the Employment Center in the form of temporary disability benefits) does not reduce the amount of paid absenteeism, as a result of which the employer also does not have the right to reduce the salary for this work permit by the above amount.
Labor Code: non-pecuniary damage caused to an employee by unlawful actions (inaction) of an employer
This codified legislative act on labor, along with the employer’s liability above with respect to compensation for material damage, also establishes its liability associated with compensation to the employee for non-pecuniary damage.
According to article 237, it is reimbursed in tangible form in such amounts as determined by agreement of the parties to the labor contract. If a dispute arises regarding this issue, then the case goes to court, regardless of property damage prescribed for compensation.
The essence of non-pecuniary damage is represented by the suffering experienced by the employee as a result of violation of his certain rights. In order to ensure the correct uniform application of the existing legislation that regulates issues of compensation for moral harm, as well as the most complete operational protection of the interests of those who became victims in the course of court consideration of cases of this category, the Presidium of the Supreme Court of the Russian Federation gave a number of clarifications in the relevant Resolution.
Over the past few years, judicial practice has shown a steady trend aimed at increasing the number of claims for non-pecuniary damage that employees make during labor disputes. However, to this day in our country there are some obstacles to the formation of a unified judicial practice of this category of cases.
The very concept of “moral harm” is absent in the Russian labor legislation. But taking into account the fact that his compensation in the field of labor relations is part of the general competence of compensation for moral damage, one should be guided by Article 151 of the Civil Code of the Russian Federation, according to which this concept is the physical (moral) suffering of a certain citizen that resulted from actions, violating his personal rights (non-property) and encroaching on other property belonging to him intangible goods.
Then, with regard to the labor relations under consideration, moral harm is the physical (moral) suffering of the employee, which is associated with the illegal actions (inaction) of the employer. This should be supported by certain evidence provided by the employee. It could be:
- disease;
- impossibility of employment;
- delay in payment of salaries, resulting in a difficult financial situation of the employee;
- moral suffering due to loss of job and inability to find a replacement for her;
- obtaining unemployment status due to a delay in issuing a work book, etc.
In accordance with the general rules, the obligation to compensate non-pecuniary damage lies with the employer, provided that he is guilty of it. There are exceptions that are stipulated by law (within the framework of our Civil Code) and are presented in the form of a number of cases when the payment of appropriate compensation is made regardless of the degree of guilt of the injuring entity,which often involves harming the life and health of a citizen through source of increased danger.
Our codified labor law clearly spells out only a couple of cases in which an employee has the right to demand compensation for non-pecuniary damage, namely:
- As part of labor discrimination.
- Upon dismissal without a legitimate reason (in violation of a certain procedure for the dismissal, unlawful transfer to another job).
The relevant determination of the Russian Supreme Court satisfied such claims as recognition of the illegality of the order of dismissal (reinstatement), recovery of salaries for forced absenteeism, payment of compensation for non-pecuniary damage. This is permissible in view of the fact that the termination of a previously concluded labor contract cannot be a measure of specific legal liability and cannot be allowed without payment of appropriate compensation in the amount established by the labor contract, and in disputed situations - by a court decision.
But the Supreme Court in the relevant ruling clarified the following point: since our codified legislative act on labor does not contain restrictions on the issue of compensation for moral damage and in other cases of violation of the rights of employees in the labor sphere, the court has the right to satisfy a number of their claims regarding compensation for damage caused by any kind of illegal actions (inaction) of the employer, including violation of their property rights (for example, delayed payment of salaries).
Thus, to summarize all of the above, we get the following: involuntary absenteeism is employee absenteeism due to the fault of their employers, for which, according to an appropriate court decision, they can receive compensation for missed opportunities and for moral damage inflicted.
