If an employee, through the fault of the employer, cannot begin to perform work duties, there is a forced absenteeism. The time of absence for reasons beyond the control of the employee is paid in a special manner. How forced absenteeism is calculated - this will be discussed later.
What is forced absenteeism according to the Labor Code of the Russian Federation
Analyzing the norms of the labor legislation of the Russian Federation, it becomes clear that forced absenteeism means skipping work through no fault of an employee of the organization. As a rule, such situations are associated with illegal actions of the employer, which led to the dismissal of a specialist without good reason or his removal from the performance of official functions without explaining the grounds (Resolution of the Plenum of the Armed Forces of Russia No. 2 of 03/17/04).
According to stat. 234 of the Labor Code, the employer is obliged to reimburse the employee for all lost payments in case of illegal deprivation of an individual of the opportunity to work. In particular, a citizen has the right to expect to receive a salary in the following cases:
- In case of illegal dismissal, transfer or removal from duty.
- If the employer company refuses to reinstate the employee by decision of the labor body or labor inspector.
- If there is a delay in issuing a work book to an employee or making an incorrect entry that serves as the basis for dismissal.
Note! stat. 391 of the Labor Code regulates that if an employee considers the dismissal illegal, he can apply to the court for reinstatement and receive compensation for the time of forced absenteeism. At the same time, the period for filing individual disputes is 3 months. from the moment when the citizen learned about the violation of his rights (stat. 392). For disputes on incomplete payment of wages and other due amounts, the period has been extended to 1 year from the date of the payments established upon dismissal.
How is the payment for forced absenteeism due to the fault of the employer
In such a situation, the employee is entitled to compensation. Payment for forced absenteeism due to the fault of the employer is carried out in the amount of average earnings for the previous 12 full months of absenteeism. The calculation includes all payments related to wages - bonuses, allowances, supplements, etc. If the employer has less than 1 year of experience, the average daily earnings are determined from the actual hours worked. Salary in previous organizations is not taken.
An example of calculating compensation for forced absenteeism
Suppose an employee Sidorov I.G. was illegally dismissed on 04/24/17. By a court decision, the dismissal was declared illegal, the employee was reinstated on 08/01/17. Payment is subject only to working days from 04/25/17 to 07/31/17. The billing period includes earnings for April 2016 - March 2017. The salary is 35,000 rubles. monthly. Let's start the calculation:
- Payroll total \u003d 35,000 x 12 \u003d 420,000 rubles.
- The number of working days in the working period = 248 days.
- The number of working days of absenteeism = 4 days. + 20 days + 21 days + 21 days = 66 days
- Average daily earnings \u003d 420,000 / 248 \u003d 1694 rubles.
- Compensation amount \u003d 1694 x 66 \u003d 111,804 rubles.
- The amount of issuance to the employee “in hand” = 111,804 - 13% = 97,269 rubles.
Note! The employer is obliged on a general basis to withhold personal income tax from the amount of compensation for forced absenteeism (letter of the Ministry of Finance No. 03-04-05 / 36473 dated 07/24/14). In addition, it is necessary to withhold insurance premiums to pay for forced absenteeism. Compensation for the time of forced absenteeism in art. 422 of the Tax Code of the Russian Federation are not included, the list of non-taxable payments given in this article is exhaustive. Therefore, it is necessary to calculate and pay insurance premiums from such compensation.
In all institutions of the budgetary and non-budgetary spheres, agreements are concluded with employees employment contracts, which in turn regulate relations in the labor sphere and arise between the employer and the employee. The conclusion of the contract is made in writing, in two copies. Signed by subordinates and superiors.
Dear readers! The article talks about typical ways solutions legal issues but each case is individual. If you want to know how solve exactly your problem- contact a consultant:
APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.
It's fast and IS FREE!
However, in many firms such documents are drawn up in the wrong order: either the terms and conditions of work are not indicated, or there is no agreement with the worker. This in the future can lead to such a phenomenon as forced absenteeism.
concept
In the documents of labor law, there is no clear definition of the term forced absenteeism. It is determined by the courts, having considered the request of the dismissed person, which lists the circumstances of the dismissal.
The court decides whether the fact of absenteeism was due to the fault of the head, or not.
In fact, forced absenteeism is a period of time when an employee was illegally suspended from his job due to the fault of the boss.
There are a number of reasons for this:
- between a worker and his boss in an illegal way;
- drawing up a contract that does not comply with the norms governing labor relations;
- illegal movement of a person between various positions in the enterprise that do not correspond to the qualifications of the employee;
- incorrect or inconsistent with the law record of dismissal.
After the employee has been acquainted with, he is issued. If this dismissal took place illegally, then the dismissed employee can apply to the prosecutor with a statement about the violation of his labor rights within a month.
How to determine the period?
Walking time in different situations determined individually.
The time for an illegally dismissed person to go to court is from 1 day to 3 months from the moment when his rights were violated when he was removed from office.
After the court has made its decision, the person must return to the previous position he occupied.
Documentation
When reinstating an employee, the employer must:
- issue an order for reinstatement at work indicating the date of reinstatement;
- make an appropriate entry in the work book, while noting that the previous entry is not valid.
After completing these documents, the accountant must calculate and pay for forced absenteeism.
Payroll and compensation calculation
The calculation is based on .
For this, wages are taken, actually accrued for 12 months, immediately before his removal.
It includes all payments under the legal regulations that govern the calculation of salaries in this company for the days actually worked, excluding amounts paid due to sickness and vacation pay.
Thus, the amount of compensation for forced absenteeism will be equal to the product of the average salary by the number of days of absenteeism that a person would work.
Consider an example:
Worker N.N. sued to have it restored to its original workplace, recovered from the defendant compensation for the time of forced absenteeism and compensation for the harm caused to him. He claims that his labor rights have been violated, since he was.
N.N. worked in the organization as a stoker until 05/13/2016. and was dismissed on the basis of Art. 79 of the Labor Code in connection with. In fact, the director did not conclude an agreement with him, did not draw up in writing.
This stoker, starting to work, did not know that he was working temporarily. The secretary did not provide it for signing. Therefore, N.N. believes that he was fired with a gross violation of the rights of the Labor Code of the Russian Federation.
Thus, he was morally harmed, as he was left without income and livelihood. Because of such treatment by the administration of the enterprise, it will be difficult for him to get a job in the future. In addition, N.N. is in pre-retirement age, which greatly complicates the search for work.
The combination of these circumstances caused moral suffering, the need to find means of subsistence, the need to apply to the prosecutor's office for the restoration of their rights.
The court, in defense of the injured person, ruled to reinstate him to his previous job with the payment of compensation for forced absenteeism in the amount of 7300.19 rubles. and non-pecuniary damage in the amount of 7,000 rubles, which was stipulated in the statement of claim by the victims N.N.
The director acknowledged the fact of illegal dismissal. The secretary wrote an order to restore N.N. June 20, 2019
The calculation of compensation was made by the accountant of the organization in which he worked, according to the following algorithm:
Calculation of the average daily wage N.N.
| Year | Months | days | Salary, rub. |
| 2015 | May | 29,3 | 6900 |
| June | 29,3 | 6900 | |
| July | 29,3 | 6900 | |
| August | 29,3 | 6900 | |
| September | 29,3 | 6900 | |
| October | vacation | — | |
| November | 29,3 | 6900 | |
| December | 29,3 | 6900 | |
| 2016 | January | 29,3 | 6900 |
| February | 29,3 | 6900 | |
| March | 29,3 | 6900 | |
| April | 29,3 | 6900 | |
| TOTAL | 322,3 | 75900 | |
| Average daily salary | 75900 / 322.30 \u003d 235.49 rubles. | ||
The number of days of absenteeism in our example was 31 (from 05/13/2016 to 06/20/2016)
Then the payment for forced absenteeism will be:
235.49 * 31 \u003d 7300.19 rubles.
In cases where the dismissal is paid, that is, the final settlement, then the compensation is reduced by this amount.
Tax calculation
Since the amount of compensation is included in the base for calculating the UST, the accountant must calculate and pay taxes accrued on wages.
As a result of this, in in due course all taxes will be charged:
- contributions to the FIU, in the amount of 22%;
- contributions to the FFOMS -5.1%;
- contributions to the FSS -2.9%;
- contributions to the FSS - 0.2%.
Income tax is withheld in the amount of 13% of the amount of compensation, and transferred to the tax authorities of the Russian Federation.
The concept of moral harm
Moral harm is moral suffering. They were caused to the employee as a result of violation of his rights at work, as well as non-property benefits that the employer delivered to him.
This compensation, as a rule, is collected through an appeal to the prosecutor. Further, the court decides to recover from the defendant financial compensation for non-pecuniary damage, which is determined in a fixed equivalent.
When accruing such a payment by an accountant, taxes are not charged and personal income tax is not withheld.
What is forced walking? What are the actions of the employer after recognizing the dismissal of an employee as illegal? What are the rules for calculating the average earnings during forced absenteeism? Do I need to withhold personal income tax from these payments and charge insurance premiums on them? How to reflect the salary for the time of forced absenteeism in accounting? You will find answers to these questions in the presented article.
What is forced walking?
Forced absenteeism- this is the time during which the employee, due to the fault of the employer, could not perform his labor duties. This situation may arise in the following cases:- if the employee was dismissed illegally;
- if the organization did not issue a work book to the dismissed employee in a timely manner.
If the employer did not issue a work book to the employee on the day of dismissal and this prevented him from getting a job new job, the time from the moment of dismissal to the day of the actual issuance work book considered forced absenteeism.
The obligation of the employer to compensate the employee for material damage caused as a result of illegal deprivation of his opportunity to work arises in accordance with Art. 234 of the Labor Code of the Russian Federation.
note
If the dismissal of an employee is recognized as illegal, the body considering an individual labor dispute makes a decision to pay the employee the average earnings for the entire period of forced absenteeism (Article 394 of the Labor Code of the Russian Federation).
In accordance with Art. 395 of the Labor Code of the Russian Federation, the monetary claims of the employee, which were recognized as justified by the body considering the individual labor dispute, are satisfied in full.
Actions of the employer after recognizing the dismissal of the employee as illegal
Article 396 of the Labor Code of the Russian Federation a requirement was established for the immediate execution of a court decision on the reinstatement of an illegally dismissed employee.Based on the court decision, the employer must:
- issue an order to reinstate the employee at work with the mandatory cancellation of the dismissal order;
- make an entry in the work book on the invalidation of the previous entry on dismissal;
- issue an order indicating for what period and what payments need to be made (for accounting, it will be the basis for accruing and paying compensation for the time of forced absenteeism);
- pay the average earnings for the period of forced absenteeism: an amount previously calculated for the court, not disputed by the company, if it is indicated in the decision, or the amount calculated after the issuance of the order;
- pay monetary compensation non-pecuniary damage, if it is awarded by the court;
- take into account in the work experience of the employee the time of forced absenteeism (Article 121 of the Labor Code of the Russian Federation).
note
The obligation of the employer to pay wages during forced absenteeism occurs simultaneously with the cancellation of the dismissal order and the reinstatement of the employee in his previous position, being an integral part of the process of reinstatement at work (Determination of the Armed Forces of the Russian Federation dated 04.23.2010 No. 5-B09-159).
It should be noted that according to Part 4 of Art. 394 of the Labor Code of the Russian Federation, if the dismissal is recognized as illegal, the court, at the request of the employee, may decide to change the wording of the grounds for dismissal to dismissal on own will. By virtue of part 7 of the same article, if in the cases provided for by this article, after declaring the dismissal illegal, the court decides not to reinstate the employee, but to change the wording of the grounds for dismissal, the date of dismissal must be changed to the date of the court decision. In the event that by the time the said decision is made, the employee, after the disputed dismissal, has entered into an employment relationship with another employer, the date of dismissal must be changed to the date preceding the day the employee began working for this employer.
If the employer is going to challenge the court decision, the preparation of the relevant documents and the direct appeal to the court should be carried out after the employee is reinstated at work.
What are the rules for calculating the average earnings during forced absenteeism?
The provisions of Art. 234 of the Labor Code of the Russian Federation provides that upon recognition by a court or commission on labor disputes If an employee is dismissed illegally, he must be paid the average salary for the entire period of forced absenteeism.According to the legal position set out in clause 62 of the Decree of the Plenum of the RF Armed Forces No. 2, the average earnings to pay for forced absenteeism are determined in the manner prescribed by Art. 139 of the Labor Code of the Russian Federation. Since the Labor Code establishes a single procedure for calculating the average wage for all cases of determining its size, the same rules should be used to determine the average earnings when collecting amounts of money:
- during forced absenteeism caused by a delay in issuing a work book to a dismissed employee (Article 234 of the Labor Code of the Russian Federation);
- in case of forced absenteeism due to an incorrect formulation of the reason for dismissal (part 8 of article 394 of the Labor Code of the Russian Federation).
In practice, litigation on issues of reinstatement and the recovery of wages for involuntary absenteeism can be delayed, and during this time the organization most often has an increase in wages.
In this regard, clause 17 of the Regulations provides for a special calculation procedure. The average earnings determined to pay for the time of forced absenteeism are increased by a special coefficient.
So, if during the forced absenteeism in the organization (branch, structural unit) increased tariff rates, salaries ( official salaries), monetary reward, the coefficient is determined by the following formula:
At the same time, in respect of payments established in a fixed amount and in an absolute amount, the rules of clause 16 of the Regulations apply: with an increase in average earnings, payments taken into account when determining average earnings, established in absolute amounts, do not increase.
note
When collecting average earnings in favor of an employee reinstated on previous work, the severance pay paid to him is subject to offset (Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2, Appeal ruling of the Sverdlovsk Regional Court of 04/01/2015 No. 33-4234 / 2015).
Involuntary absenteeism and payroll taxes
Personal income tax. According to the general rule established in paragraph 1 of Art. 210 of the Tax Code of the Russian Federation, when determining the tax base for personal income tax, all incomes of the taxpayer that he received both in cash and in kind or the right to dispose of which he has arisen are taken into account.According to the official position of the Ministry of Finance, the amount of average earnings due to an employee during forced absenteeism is subject to personal income tax in accordance with the generally established procedure. This is due to the fact that the list of income exempt from taxation is given in Art. 217 of the Tax Code of the Russian Federation, and income in the form of average earnings during forced absenteeism is not named in the specified list (letters of the Ministry of Finance of the Russian Federation dated July 24, 2014 No. 03-04-05 / 36473, dated April 13, 2012 No. , Federal Tax Service of the Russian Federation of 04.04.2006 No. 04‑1‑04/190). Supervisors and arbitrators support (decisions of the FAS MO dated 04.26.2007, 05.04.2007 No. KA-A40 / 3164-07 in case No. A40-70555 / 06-4-304, FAS SZO dated 07.06.2006 No. A56-53997 / 2005) .
There is another point of view. The point is that Art. 394 of the Labor Code of the Russian Federation, the payment for the time of forced absenteeism, made to the employee in the form of average earnings, is defined as compensation. Considering this norm, UMNS for the city of Moscow, in Letter No. 28-11 / 12809 dated February 27, 2004, concluded that compensation in the form of payment to an employee of average earnings during forced absenteeism refers to compensation established by the legislation of the Russian Federation, and falls under paragraph 3 of Art. 217 of the Tax Code of the Russian Federation. The FAS MO came to the same conclusion in the Decree of 08.12.2008 No. KA-A40/11341-08 in case No. A40-6313/08-33-28.
However, in practice it is better to be guided by the later clarifications of officials.
The situation is different in a situation where, along with the payment of average earnings for the time of forced absenteeism, the employee is compensated for moral damages awarded by the court. The amount of compensation for non-pecuniary damage caused by the court to an individual, is a compensation payment provided for in paragraph 3 of Art. 217 of the Tax Code of the Russian Federation, and, therefore, is not subject to taxation (Letter of the Federal Tax Service for Moscow dated March 17, 2011 No. 20-14 / 3 / [email protected]).
For your information
If compensation for non-pecuniary damage is not carried out on the basis of a court decision, these payments are not recognized as compensation payments that fall under the paragraph 3 of Art. 217 Tax Code of the Russian Federation, and subject to personal income tax in the prescribed manner.
In what order is personal income tax withheld when paying average earnings during forced absenteeism? According to par. 1 p. 4 art. 226 of the Tax Code of the Russian Federation, the withholding of the amount of personal income tax is made by the tax agent directly from the income of the taxpayer when they are actually paid.
In practice, there are often situations when in the writ of execution the amount of payment by court decision is determined without taking into account the personal income tax to be withheld. By virtue of paragraph 2 of Art. 13 Code of Civil Procedure of the Russian Federation, a court decision providing for the obligation of an organization to pay a certain amount of money to an individual is subject to mandatory execution. In this case, the organization must pay the amount indicated in the writ of execution, without withholding personal income tax (Letter of the Federal Tax Service for Moscow dated 07.10.2009 No. 20-14 / 3 / [email protected]).
The Ministry of Finance in Letter No. 03‑04‑06/15507 dated 07.04.2014 noted: the debtor organization has the opportunity to draw the attention of the court to the need to take into account the requirements of tax legislation when determining the amounts payable. If, when making a decision, the court does not separate the amounts payable to an individual and withholding from him, the tax agent is not able to withhold personal income tax from payments made to the taxpayer by court decision. At the same time, the tax agent must withhold tax when making other payments to the taxpayer. In the absence of such payments before the end of the tax period, the tax agent in accordance with paragraph 5 of Art. 226 of the Tax Code of the Russian Federation is obliged to inform the taxpayer and the tax authority at the place of its registration about the impossibility to withhold the tax and its amount (Letter of the Ministry of Finance of the Russian Federation dated 02.11.2015 No. 03‑04‑05/62860).
How are tax deductions applied when calculating personal income tax on the amount of average earnings paid to an employee by a court decision in connection with the recognition of his dismissal as illegal? These payments are not remuneration for the performance of labor duties. The Ministry of Finance, in Letter No. 03‑04‑05/24633 dated 28.06.2013, clarified that when receiving income in cash, the date of actual receipt of income is determined as the day of payment of income, including its transfer to the taxpayer's bank accounts (clause 1, clause 1 article 223 of the Tax Code of the Russian Federation). This means that deductions can only be granted from January 1 of the tax period in which the forced absenteeism payment is made.
Insurance premiums. In Letter No. 02-07-05 / 35315, the Ministry of Finance noted that the payment made to the employee in the amount of average earnings during forced absenteeism is subject to insurance premiums, since it is not included in the list of payments exempted from taxation by them (Article 9 federal law No. 212-FZ). In this case, the object of taxation of insurance premiums will arise at the time of calculating the salary, regardless of the date of its actual receipt by the employee and the period for which it is accrued (Articles 11, 15 of the Federal Law No. 212-FZ).
When should insurance premiums be charged? The calculation of insurance premiums from the amount of payments due to the employee is carried out simultaneously with the accrual of compensation in the amount of average earnings for the time of forced absenteeism on the date the employee is reinstated in his position by a court decision upon cancellation of the dismissal order.
By the way, on the issue of calculating insurance premiums, the arbitrators are also in solidarity with the controllers (Resolution of the FAS ZSO dated December 20, 2013 No. A45-20740 / 2012).
For your information
Since the provisions of Art. 9 of the Federal Law No. 212-FZ with respect to compensation payments upon dismissal are similar to Art. 422 “Amounts not subject to insurance premiums” of the Tax Code of the Russian Federation, after the aforementioned law ceases to be valid and Ch. 34 of the Tax Code of the Russian Federation, the position of the Ministry of Finance on the issue of calculating insurance premiums should not change.
Reflection of payments for forced absenteeism in accounting
According to the financial department, expressed in Letter No. 02‑07‑05/35315 of June 17, 2016, the accrual of obligations to the employee should be made simultaneously with the cancellation of the dismissal order and the restoration of the employee in his previous position, reflected in the accounting records at the time of the commission (directly after graduation). This follows from the rule that the court's request for the reinstatement of an illegally dismissed employee must be executed immediately (Article 396 of the Labor Code of the Russian Federation). As for the reflection of the facts of economic life in accounting, it must be carried out when the fact of economic life is committed, and if this is not possible, immediately after its completion (Article 9 of the Federal Law of December 6, 2011 No. 402‑ФЗ “On Accounting”) .The amount of average earnings for the period of forced absenteeism paid to the employee, as well as insurance premiums accrued on it, are included in expenses for ordinary activities (clause 5, paragraph 3, 4 clause 8 PBU 10/99).
For your information
When paying average earnings during forced absenteeism, the organization recognizes these expenses in the month the court decision comes into force (clause 16 PBU 10/99).
Accounting entries for the reflection of payments in connection with the restoration of an employee at work are made in the manner established by the Instruction on the application of the Chart of Accounts accounting financial and economic activities of organizations, approved by the Order of the Ministry of Finance of the Russian Federation dated October 31, 2000 No. 94n.
Example.
An employee of the organization, dismissed in February, filed a lawsuit in court to recognize his dismissal as illegal. The court granted the plaintiff's claims and ordered the organization to reinstate the illegally dismissed employee and pay him the amount of average earnings during the forced absenteeism in the amount of 110,000 rubles. Based on the received writ of execution, the organization in September reinstated the employee in his position and paid him the amount awarded by the court from the cash desk.
On the date of accrual of average earnings for the period of forced absenteeism:
The employee does not have the right to receive standard personal income tax deductions;
The amount of payments made by the organization in favor of the employee, calculated from the beginning current year cumulatively, does not exceed limit value established for the calculation of insurance premiums.
How to reflect in the accounting payment for forced absenteeism to an illegally dismissed employee reinstated at work by a court decision?
In connection with the payment of average earnings to the employee during forced absenteeism, the accountant must make the following entries:
| Contents of operation | Debit | Credit | Amount, rub. |
| Accrued average earnings during forced absenteeism | 20 (25, 26, 44) | 70 | 110 000 |
| Accrued insurance premiums in the amount of average earnings (110,000 rubles x 30.2% *) | 20 (25, 26, 44) | 69 | 33 220 |
| The employee was paid from the cash desk the amount of average earnings during the forced absenteeism | 70 | 50 | 110 000 |
| Withheld personal income tax accrued from the amount of average earnings during forced absenteeism (when paying the employee other income in cash, in particular, wages) (110,000 rubles x 13%)** | 70 | 68 | 14 300 |
The rates of insurance premiums: in the PFR - 22%, in the FSS - 2.9%, in the FFOMS - 5.1%, for compulsory social insurance against industrial accidents and occupational diseases, taking into account the class of occupational risk to which economic activity belongs organizations - 0.2%.
**
Provided that the withheld amount of personal income tax does not exceed 50% of the amount of payment (clause 4 of article 226 of the Tax Code of the Russian Federation).
Summarize:
the employer is obliged to pay wages for the time of forced absenteeism at the same time as he cancels the dismissal order and reinstates the employee in his previous position;
the average earnings to pay for the time of forced absenteeism is determined in the manner prescribed Art. 139 of the Labor Code of the Russian Federation. If salaries increased during forced absenteeism in the organization, the calculated average earnings are subject to indexation;
according to the official position of controllers, personal income tax is withheld from the amount of average earnings paid during forced absence;
Simultaneously with the accrual of compensation in the amount of average earnings for the period of forced absenteeism on the date the employee is reinstated in his previous position, insurance premiums are calculated from this amount.
Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code Russian Federation".
Letter of the Ministry of Finance of the Russian Federation dated June 17, 2016 No. 02‑07‑05/35315 “On the period of payroll for the period of forced absenteeism and the corresponding deductions to the FSS of the Russian Federation and the Pension Fund of the Russian Federation”.
Federal Law No. 212-FZ of July 24, 2009 “On Insurance Contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, and the Federal Compulsory Medical Insurance Fund”.
The absence of an employee from a formal workplace can be caused in some cases by the direct fault of the employer. There may be many reasons and questions here, but the relevant law indicates that the fault of the employer has nothing to do with the calculation of wages. Next, it will be told how payment is made and calculated and everything due compensation if the actual forced absenteeism was allowed through the fault of the formal employer.
Reasons for forced absenteeism
Definition similar reasons specified in today's Labor Code.
With regard to the fault of the employer, among such reasons it is advisable to single out the following:
- the employee performs in due order his direct official duties and, that is why he is absent for a certain period at the workplace;
- the employer instructed the employee to carry out a specific assignment that was impossible to complete on time;
- the employer erroneously calculated and calculated the period of absence;
- the employer did not take care of creating all the conditions that are subject to mandatory accounting, as a result of which the employee did not have the opportunity to appear at his workplace for one day or a longer period;
- during certain period due to the fault of the employer, access to the workplace was virtually impossible.
Is forced absenteeism paid according to the law?
Article 394 states that compensation for everything set time made on a mandatory basis without any deductions from the principal amount. Based on this disposition, then payment according to the relevant law is required to be received in a standard amount.
The employer will not be able to make any other decision regarding the recalculation of wages.
In practice, it is quite simple to prove the guilt of the organization for forced absenteeism. The Labor Code of the Russian Federation equates forced absenteeism due to the fault of the employer to formal downtime. Accordingly, the employee will be entitled to receive his due salary without any change. In these cases, it is calculated according to the standard scheme.
How is the average earnings calculated during forced absenteeism?
Put wage formally calculated in a similar way. Forced absenteeism, if the fault of the conditional employer is directly established, will not affect the amount of wages in any way.
The profile law also indicates that the time of absence will not affect the amount of payment. Therefore, regardless of the name of the reason for the absence, wages must be calculated according to the scheme established in Article 78 in each case.
Compensation for forced absenteeism in case of illegal dismissal
First of all, the employer will not formally have the right to dismiss his conditional employee due to the established forced absenteeism. At present, such a decision will be considered completely illegitimate, and contrary to several dispositions of labor legislation at once.
Payment for forced absenteeism during illegal dismissal is a secondary issue in this case. The main problem lies in the illegal dismissal itself.
In this case, the conditional worker must draw up a correct statement of claim and submit its sample to the territorial court. This concept also applies to the refusal to calculate compensation for the time spent on sick leave. It is desirable to draw up a sample in the proper form, because if the statement of claim has any errors or shortcomings, it will not be possible to fall into the judicial authority.
Application for reinstatement due to forced absenteeism - sample
For its correct compilation, it is desirable to familiarize yourself with the most general sample.
Here, the illegally dismissed formal employee focuses on indicating the reason for his absence. In this case, the fault of the organization in the statement of claim must be documented.
In the first part of this statement of claim, the details of the organization are indicated with the designation of all territorial data.
Descriptive part contains indications of the circumstances that became the direct reason for the termination of the relationship. In this case, this circumstance is absence from the workplace.
In the asking part the calling of the organization to responsibility is indicated, and as a result, the restoration of the staff unit in its original place.
Forced absenteeism - judicial practice
Judicial practice is currently extremely loyal to formal employees in the event that the latter manage to prove the actual absence from their personal workplace due to the fault of the organization. If this cannot be documented, then you can provide witness's testimonies their direct colleagues.
Class action claims here will be the main factor for a positive outcome, because in most cases several employees face such circumstances at once.
The Labor Code of the Russian Federation does not give a clear definition of forced absenteeism.
According to the general current norms and established practice, such a period is recognized as a temporary break in the implementation of professional activities, which occurred through no fault of the employee.
Of course, the reason for this can be circumstances, the occurrence of which did not depend on the parties to the agreement - military operations, natural disasters, mass diseases, industrial accidents.
But sometimes a break in a person’s professional activity may arise due to the unfair attitude of the head to the fulfillment of the obligations imposed on him by the current regulations.
As it was indicated, a clear concept of what forced absenteeism is is not contained in the Labor Code of the Russian Federation.
According to established practice, the essence of such a concept is that a person had real opportunity fulfill their official duties, but was limited in this due to the bad faith of the head of the company. Examples of such actions of the chief are:
- dismissal from a position or transfer to another position in cases where the employer did not have such a right;
- unreasonable denial of admission to the staff of the organization;
- signing a working agreement in violation of the established terms of conclusion;
- untimely fulfillment of the requirements of a judicial or other authorized instance on the reinstatement of a worker in a position;
- incorrect, for example, incorrect wording in the relevant order of the head, if this caused the impossibility of employment in a new place;
- delay in issuing a personal work book of an employee;
- non-payment of the due sums of money.
These reasons create some obstacles for a person. They arise through no fault of the employee, therefore they are considered a forced break.
Illegal suspension or dismissal
Suspension, as well as dismissal, is mainly possible in cases where the worker violated his official duties, that is, partially did not fulfill or completely withdrew from the performance of those.
Such cases include:
- absence from one's place for more than four hours in a row or all day long;
- the use of alcohol or illegal drugs or the presence on the territory of the organization under the influence of these substances;
- violation of internal security rules;
- communication of restricted access information to unauthorized persons;
- , damage or loss of entrusted material assets of the company.
There are other reasons why a person may be suspended from work or fired altogether.
Regardless of the circumstances, it is necessary to check and document the fact of the violation in order to have evidence in hand.
If this is not done, then any break in professional activity will be considered forced.
Late execution of the decision on reinstatement at work
According to the rules of the Labor Code of the Russian Federation, a forced absenteeism can be a situation when the head did not comply with the requirements of a court opinion or a decision of another authorized instance to reinstate the worker in his position.
According to the current general rules, an employee can be reinstated in his original place by a court decision.
It is not uncommon for people to be fired from their jobs without having to do so. The worker can also leave if he disagrees with some of the actions of the manager, for example, in the case of an illegal transfer. In such circumstances, people most often apply to the court or other authorized body for reinstatement.
After a formal hearing, the competent authority always issues its opinion. If the issue is resolved in favor of the worker, the decision is not only given to the person, but also sent to the organization where he worked.
In conclusion, the time period during which the requirements of the person must be fulfilled is always indicated.
If the manager does not execute the decision on time, then forced absenteeism automatically occurs. It should be noted that a delay of this kind is also recognized as non-execution of a court decision. In this case, criminal measures may be applied to the head.
Delay in the issuance of a work book
Forced absenteeism through the fault of the employer also occurs in case of violation of the terms of extradition to a person.
According to current standards, upon dismissal, on the last day of labor, without fail, a person must be issued a work book with the entry in it.
If for some reason a person is absent on the day of dismissal, the head is obliged to send him a notification about the need to appear to receive the specified document.
After sending the notice, it is considered that the head has fulfilled his obligation. The timeliness of the issuance of such a document is due to the fact that without it it will be extremely difficult to get a new job, since the submission of a work book is prerequisite upon employment.
Quite often, even before leaving, a person is looking for a new job and immediately after being fired, he can get a job again. If he does not have a book in his hands, then he may lose this opportunity. Accordingly, his activities will be interrupted due to the manager's dishonesty and a period of forced break will occur.
Compensation for forced absence
According to the requirements of the Labor Code of the Russian Federation, in case of violation general rules the person must be paid for forced absenteeism. It should be noted that this will only be possible if the break was recognized as forced.
Such funds are paid in the following order:
- for the time of forced absenteeism will be accrued due to the reinstatement of a person in a position;
- in case of untimely execution of the court decision, forced absenteeism is also paid;
- for forced absenteeism, payment will also be made if the person did not seek to be reinstated, but only to change the wording of the reason for dismissal in the order for leaving on personal intention.
It should be noted that payment for forced absenteeism will be possible not only as a result of a court decision. Sometimes the leader eliminates the violations on his own.
Cash in this case is the salary that a person could earn by carrying out his professional activity.
The following will be taken into account:
- salary set for the position held;
- allowances of a different nature, for example, for harmful factors in labor;
The amount in this case is calculated based on the duration of the forced break. The calculation is made in actual working days, according to the person's work schedule.
The specified time period will be calculated not from the date of the relevant decision, but from the moment the actual start of absenteeism, for example, from the day the worker was dismissed.
Compensation for non-pecuniary damage
In addition to payments of earned funds, for forced absenteeism, a person may be awarded compensation for moral damage caused.
Compensation of this kind can be received by a person, regardless of the reasons for the forced absenteeism.
It is believed that moral suffering can be caused to a person due to the inability to find a new place of work. The manager himself can eliminate the committed violations. However, he is not able to compensate for the damage of this nature. What is meant here is that it will not be possible to reflect this kind of phrase in the payment order, since in financial policy the company does not provide for an expense item for such needs. Nevertheless, damage can be compensated, for example, in the form of bonus payments.
As for the precise wording of this content, it is always included in the content of the judgment. That is, the request for such content can only be satisfied by the court.
The amount of this compensation and the procedure for its calculation are not established by the current regulations. The specific amount of compensation is determined by the person himself and indicates it in his appeal.
Each interested person should be aware that such a payment may be revised by the court, as a rule, downward. The thing is that in the course of the proceedings, the proportionality of the claimed amounts is always compared with the degree of suffering that was caused to the applicant.
Inclusion of forced absenteeism in the length of service
According to the general rules in force, the time of forced absenteeism is included in the total period of activity, which is necessary for the future, as well as obtaining additional guarantees and benefits for the duration of work.
This approach is quite logical. The thing is that during the forced break, a person could not only earn money, but actually do his job, but because of the leader’s dishonesty, he was deprived of such an opportunity.
Therefore, such a period is taken into account in the total duration. The reason for such a break in this case does not matter.
It should be noted that inclusion in absenteeism will be possible if it was recognized as forced by the conclusion of the court.
Otherwise, a person will lose such a time period. In the future, the forced break will also be taken into account when calculating vacation and additional payments to the main salary for the duration of work.
Arbitrage practice
In one of the courts of the Russian Federation, a person's appeal was considered with a request to recover money from the company for material and moral damage due to forced absenteeism.
In the course of studying the content of the appeal, it was found that the initiator was in the company and carried out his professional activities as a driver, on the basis of a signed employment agreement.
On one Labor Day, a man discovered that his work vehicle was not serviceable. He informed his immediate superior about this. He, in turn, invited another specialist to temporarily replace, as a result of which the initiator did not perform his work on the specified day. He agreed to the change. For this reason, the applicant expressed a request to recover in his favor from the company funds for the material and moral damage caused.
The representative of the company explained that on that day the initiator actually came to work, but refused to fulfill his duties, although all the equipment was serviceable. The worker explained his refusal by the fact that the vehicle is dirty, which makes it difficult to use it. The person did not provide written explanations.