Forced absenteeism: reflection in accounting. Forced absenteeism of an employee

Compensation for forced absenteeism illegal dismissal paid to employees whose rights are violated by an unscrupulous employer. Let's take a closer look at the procedure for collecting it.

What absenteeism is considered forced

In the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), only the concept of absenteeism is indicated: the absence of an employee at the workplace without any good reason for a period of 4 hours to the entire working day or shift (clause "a" part 4 of article 81 TC RF). The actions of the latter listed in paragraph 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 (hereinafter - PP No. 2) are equated to absenteeism, as a result of which the termination of the employment contract with the employee is possible.

There is no definition of the term "forced absenteeism" in any of the laws. But this concept is found in court decisions and some by-laws. normative documents governing labor relations. Among them is the Decree of the Government of the Russian Federation “On the peculiarities of the procedure for calculating the average wages” dated December 24, 2007 No. 922 (hereinafter referred to as Resolution No. 922) and the already mentioned PP No. 2.

From the analysis of the above legislative norms the following concept of forced absenteeism follows: this is a period of 4 hours during which the employee was absent from the workplace (was outside the workplace) or was deprived of the opportunity to work and receive wages for this through the fault of the employer.

NOTE! We focus on the important feature: an employee is forced to be absent from the workplace or stop performing his immediate duties not by circumstances that can be considered valid, but precisely by illegal actions on the part of the employer.

Typical situations of forced absenteeism

The most typical situations in the field of labor relations, in the event of which we can talk about forced absenteeism, are mentioned in paragraphs. 41 and 62 of PP No. 2, as well as Art. 394 of the Labor Code of the Russian Federation. Let's highlight the main ones:

groundless dismissal;
removal from the performance of immediate duties without good reason;
violation of the procedure for dismissal, even in the absence of an employee at the workplace for disrespectful reasons (clause 41 of PP No. 2);
an error in formulating the grounds for dismissal;
issuance delay work book dismissed;
delay in the execution of a court decision on reinstatement at work.

The last of the 2 indicated grounds can be recognized as forced absenteeism in and of themselves, and if these reasons have become an obstacle to the employee's admission to another job (paragraph 8 of article 394 of the Labor Code of the Russian Federation).

The procedure for recognizing absenteeism as forced

In order for absenteeism to be recognized as forced, one opinion of a dissenting employee is not enough. Controversial questions about whether absenteeism was or not are resolved in 2 ways:

By considering the labor conflict that has arisen by the commission on labor disputes(KTS). As follows from Art. 385 of the Labor Code of the Russian Federation, the powers of the CCC include consideration of questions on the legality of the application disciplinary action. It follows that this body is quite competent to make decisions on recognizing absenteeism as forced. Meanwhile, consideration of the issue of payment for forced absenteeism is the exclusive prerogative of the court (Article 391 of the Labor Code of the Russian Federation).
Judicially. Let's dwell on this point in more detail.

The powers given to the court by law make it possible to resolve a wider range of issues related to forced absenteeism. It is the court that decides:

the legitimacy of suspension from work or dismissal;
changing the wording of the grounds for illegal dismissal to dismissal for own will;
the procedure for reinstatement at work or transfer to another position;
the procedure and amount of payment of compensation for the time of forced absenteeism.

This list is not exhaustive. Disputes of this kind belong to the category of labor disputes, and decisions on them are individual for each specific case.

Recovery of compensation in case of illegal dismissal

The recognition of dismissal as illegal and the procedure for paying compensation for forced absenteeism are reflected in court decisions on labor disputes. Within the meaning of Art. 394 of the Labor Code of the Russian Federation and clause 62 of PP No. 2, after recognizing the dismissal as illegal, and absenteeism as forced, the court will oblige the employer to take one of the following actions against the employee:

reinstate at the previous job;
if it is impossible to restore due to the liquidation of the organization, pay compensation for the entire time of forced absenteeism and replace the wording of the reasons for dismissal with paragraph 1 of part 1 of Art. 81 of the Labor Code of the Russian Federation;
pay compensation without recovery, changing the wording to dismissal of one's own free will;
pay the amount recovered for the delay in the execution of the court on reinstatement.

If during the period of forced absenteeism in the organization tariff rates, salaries and monetary rewards increased, the amount of compensation collected increases by a coefficient calculated according to the following formula:

K \u003d TS1 / TS2,

where: TS - tariff rate(salary, monetary remuneration) on the first day after the restoration of the working day;

TC2 - a similar indicator in the billing period (clause 17 of Resolution No. 922).

Non-payment of compensation for unused vacation upon dismissal

By general rule established by Art. 127 of the Labor Code of the Russian Federation, if there are unused vacation days at the time of dismissal, the employee receives monetary compensation for each of them, and on the day of dismissal. The exception is the condition when the total number of all days worked in the organization did not exceed a crescent (clause 35 of the Rules on Regular and Additional Leaves approved by the USSR TNKT dated April 30, 1930 No. 169, hereinafter referred to as the Rules).

How the amount of the type of compensation in question is calculated is discussed in paragraph 28 of the Rules. Non-payment of compensation upon dismissal of an employee is punishable by a warning or a fine (part 6 of article 5.27 of the Code of Administrative Offenses of the Russian Federation).

In a situation where the dismissal of an employee is subsequently declared illegal, the procedure for paying the type of compensation in question is as follows. If earlier, on the day of dismissal, such compensation was already received by the employee, then when he is reinstated at his previous workplace and the amount of the penalty is calculated, it is offset. In other words, the amount of recovery of average earnings is reduced by the amount of previously paid compensation for unused vacation upon dismissal (clause 62 of PP No. 2). At the same time, the reinstated employee retains his right to annual paid leave.

If compensation for forced absenteeism was not paid to the reinstated employee, then when granting leave, the employer recalculates the payments made earlier as compensation for the unused part of the leave (letter of Rostrud dated 06/14/2012 No. 853-6-1).

Is the payment of involuntary absenteeism taxable?

All received individual income is subject to taxation (Article 210 of the Tax Code of the Russian Federation). It is wrong to assume that this species compensation is related to those named in paragraph 3 of Art. 217 of the Tax Code of the Russian Federation, even if such compensation is paid by a court decision.

Called the word “compensation”, the payment is essentially the average earnings of the employee, that is, his income. As follows from the content of Art. 234 of the Labor Code of the Russian Federation, the employer compensates the employee for lost earnings, restores the violated right of the employee to receive payment for work, but does not compensate him for any costs and does not compensate for any damage associated with his failure to fulfill his labor duties or other duties provided for by law (letter Ministry of Finance of the Russian Federation dated July 24, 2014 No. 03-04-05 / 36473, JSC IC for Administrative Cases of the Vladimir Regional Court dated September 8, 2015 in case No. 33-3035 / 2015).

For this reason, income tax is payable on the amount recovered. The employer himself must withhold the amount of taxation, since it is he who is recognized as a tax agent in relation to the specified income and must fulfill the obligations stipulated for tax agents in Art. 226 of the Tax Code of the Russian Federation (letter of the Ministry of Finance of the Russian Federation of December 26, 2011 No. 03-04-06 / 6-358).

But when compensating for moral damage caused to an employee, the amount of which is determined by the court, its amount is recognized as a compensation payment and on the basis of paragraph 3 of Art. 217 of the Tax Code of the Russian Federation is no longer subject to taxation (letter of the Ministry of Finance of the Russian Federation of November 28, 2008 No. 03-04-05-01 / 450).

Summarizing what has been said, we note that the burden of proving the fact of forced absenteeism lies with the illegally dismissed employee. After the establishment of such a fact, the employer is obliged to restore the employee's rights, including to pay compensation. Additional will of the employee is not required.

Everyone knows the term "truancy". It is interpreted as skipping classes (work) without a good reason. Now it is worth defining the concept of "forced absenteeism" considered in this article. This is a missed work due to the employer (through his fault). For example, in a situation of unlawful dismissal of an employee. The time period until his reinstatement in his previous position by a court decision is the time of forced absenteeism.

Payment for this work pass

In the example above, it is worth emphasizing that the employee has the right to file a lawsuit. At a positive result(i.e., he will be satisfied by the court), the employer is obliged to reinstate this employee in his previous position. In accordance with our labor legislation, he must also pay forced absenteeism (for all the time) in the amount of the average amount of earnings that an employee could receive during the same period while performing his previous job 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 a salary “in an envelope”, to determine the amount that is intended for forced absenteeism, only the “white” salary with all official bonuses and financial incentives will be taken into account.

In this situation, not only compensation for the time of forced absenteeism is due, but also compensation for non-pecuniary damage. That is, the employee has the right to demand compensation for moral damage caused by wrongful dismissal.

Calculation of the time period of the absenteeism in question

The day of dismissal is the last working shift. Forced absenteeism (Labor Code of the Russian Federation) is calculated starting from next day upon receipt of an appropriate dismissal order. 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 issue a work book to the employee upon dismissal (as he should have done by law). For this reason, the employee could not submit this document to the new organization the next day (which must be handed over to the personnel department when hiring). In this regard, the employee suffers losses that arose through the fault of the former employer, as a result of which he is entitled to compensation for forced absenteeism.

This is not the only situation when the employer must compensate financially for the lost opportunity of the employee due to his incorrect actions. Thus, the recovery of compensation for forced 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 new job It was the fault of the former employer.

Forced absenteeism: judicial practice

Cases related to the wrongful dismissal of employees can be said to be quite popular today. This may include the incorrect execution by employers of dismissal for absenteeism, and the illegal dismissal of pregnant women, threats against employees in order to sign a letter of resignation precisely 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 a court decides in favor of the wrongfully dismissed employee - the plaintiff).

Unfortunately, not all laid-off workers have knowledge on this issue, and therefore cannot protect their rights to reinstatement in their previous positions and compensation for forced absenteeism.

In this regard, the injured employee should immediately contact an appropriately 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 regarding the workplace in a certain employment contract, then it is impossible to consider a situation when an employee is not at his usual workplace, but on the company’s territory, as absenteeism.

Punishment for missing work - disciplinary measures: reprimand, dismissal or remark. The right to choose the appropriate measure provided for by Russian labor legislation, other federal laws available directly from the employer. He can also refuse any punishment at all. The concept of "forced absenteeism that occurred through the fault of the employee" can be interpreted as skipping work for a good reason.

Dismissal under the relevant article for absenteeism according to the law must be preceded by an explanation of the employee, drawn up in writing. In the event that the employer considers the reasons given by the employee for absence from the workplace as disrespectful, he may order the dismissal. The employee may not agree with this decision, then he should apply to the appropriate court, which will consider the question of the validity of the specified reasons (whether it is considered absenteeism or not). However, there is a catch - there is no clear list of such good reasons in our labor legislation. But several groups can still be distinguished.

Valid reasons: subjective, objective

The first are closely related to the individuality of the employee himself. This includes, firstly, the state of health. In this case, the evidence of a justified absence from your workplace may be the following:

doctor's record of admission in the card (outpatient);
a certificate from the attending physician that the 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). Fourthly, an employee cannot be dismissed for absenteeism if he takes part in a court session as a plaintiff, witness, juror. Confirmation - court summons. This can also include a call to the police, the activities of a member of the commission (election). Fifthly, the elimination of any communal accident in their housing (except scheduled inspections ZHKO).

The objective reasons why an employee cannot appear at work are circumstances caused by various kinds of force majeure. This is:

weather;
technogenic accidents, catastrophes;
emergency traffic situations;
war activities.

If the employer does not agree with these reasons, and it comes to dismissal, then when the employee goes to 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 this, since an application for reinstatement in a previous job is submitted to the court within a month.

Reasons for the application, equated to valid

There are circumstances, the occurrence of which does not allow the employee to appear at his workplace. The employer must be warned about them in advance, which is why the employee is obliged to write a request for a day off. According to our labor legislation, in response to it, the employer is obliged to 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 an employee - a parent of a disabled child;
1 per month - for an employee engaged in labor activities in rural areas;
breaks - for working employees with children under 1.5 years old who are breastfed (artificially) fed.

Recovery of wages for the considered type of work absence

According to the Labor Code, forced absenteeism is a certain period of time during which an employee could not carry out his labor activity due to the fault of the employer alone. The reasons are listed there as well:

The consequence of the above reasons is a penalty for forced absenteeism in cash in the form of average earnings for the entire period in a judicial proceeding. To do this, it is necessary within three months from the date of receipt of information regarding the violation of the right to apply to the appropriate court. In disputable situations regarding dismissal, the application deadline is reduced to a month (starting from the moment the relevant order is delivered and the labor document is issued).

Labor Code: List of Individual Disputes Based on Employee Applications

To be precise, article 391 is devoted to this. Such disputes are considered in the courts of general jurisdiction. Our codified labor statute provides the following list of disputes regarding claims by various employees regarding:

Their reinstatement at their previous job, 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.
Payment for the period of time that took forced absenteeism (definition this concept presented earlier).
Payment of the difference in salary for the time spent on the performance of work below paid.
Illegal actions (inaction) of the employer in the process of processing, protecting personal data of employees.
Other individual disputes regarding the labor field.

Calculation of average earnings from the point of view of the legal aspect

As mentioned earlier, the employee is entitled to compensation for forced absenteeism. average value the earnings required to determine the payment for the period of time spent on this absence of work is established on the basis of the Russian codified labor legislation and the existing Regulation on the specifics of the procedure for calculating this indicator, which is approved by our Government.

Its calculation - regardless of the operating mode - is carried out on the basis of the actual salary of the employee and the time actually worked by him for the year preceding the moment of payment. The corresponding collective agreement may also specify other periods that serve as the basis for calculating the average salary (of course, provided that this does not worsen the already existing situation of employees).

The amount of payment, the period must be displayed in the court decision, writ of execution. This amount may be reduced by the appropriate amount of the due severance pay, which was paid to the employee upon dismissal.

It is worth noting that payments for forced absenteeism (Labor Code of the Russian Federation) are made at the same time as the issuance of an order regarding the cancellation of dismissal. The Supreme Court pointed out that the essence of the reinstatement in the previous job is the abolition of the legal consequences of the dismissal procedure by precisely refusing the relevant order, and not by issuing another (on reinstatement) after the court makes this decision.

Thus, the obligation of the employer to pay wages for all forced absenteeism occurs at the time of the cancellation of the dismissal order and the restoration of the employee to his previous position. Such payment is an integral part of the process of reinstatement at the same place of work.

It is also worth noting that the employer does not have the right to independently reduce the amount that was appointed by the court. And the salary received by an illegally dismissed employee in another company (Employment Center in the form of temporary disability benefits) does not reduce the amount of payment for forced absenteeism, as a result of which the employer also does not have the right to reduce the salary for this work absence by the above amount.

Labor Code: moral harm caused to an employee by illegal actions (inaction) of the employer

This codified legislative act on labor, along with the above-mentioned liability of the employer regarding compensation for material damage, also establishes his liability related to compensation for moral damage to the employee.

According to Article 237, it is compensated in material form in such amounts as are determined by agreement of the parties to the employment contract. If a dispute arises regarding this issue, then the case goes to court, regardless of the property damage prescribed for compensation.

The essence of non-pecuniary damage is represented by the suffering that an employee experiences as a result of a violation of his certain rights. In order to ensure the correct uniform application of the existing legislation, which regulates the issues of compensation for moral damage, as well as the most complete operational protection of the interests of those who became victims in the process of consideration by the courts of cases of this category, the Presidium of the Supreme Court of the Russian Federation in the relevant Decree gave a number of clarifications.

Over the past few years, judicial practice has shown a steady trend aimed at increasing the number of claims for moral damages that employees make in the process labor disputes. However, in our country, to this day, there are some obstacles to the formation of a unified judicial practice in this category of cases.

The very concept of “moral harm” is absent in Russian labor legislation. But taking into account the fact that his compensation in the field of labor relations is part of general competence compensation for moral damage 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, which was the result of actions that violate his personal rights (non-property) and encroach on other intangible benefits belonging to him.

Then, for the considered labor relations moral harm - physical (moral) suffering of an employee that is associated with illegal actions (inaction) of the employer. This must be supported by certain evidence provided by the employee. It could be:

disease;
impossibility of employment;
delay in the payment of wages, resulting in a difficult financial situation for the employee;
moral suffering due to the loss of a job and the inability to find a replacement for it;
obtaining unemployed status due to a delay in issuing a work book, etc.

In accordance with the general rules, the obligation to compensate for non-pecuniary damage is assigned to the employer, provided that it is his fault. 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 harming subject, which often includes damage to the life, health of a citizen through

In our codified labor legislation, only a couple of cases are clearly spelled out in which an employee has the right to claim compensation for moral damages, namely:

As part of discrimination in the labor sphere.
Upon dismissal without a legal basis (in violation of a certain procedure for the dismissal process, unlawful transfer to another job).

The relevant Ruling of the Russian Supreme Court satisfied such claims as recognition of the illegality of the dismissal order (reinstatement to previous job), recovery of wages for forced absenteeism, payment of compensation for moral damage. This is permissible due to the fact that the termination of a previously concluded employment contract cannot be a measure of specific legal liability and cannot be allowed without payment of appropriate compensation in the amount established employment contract, and in disputable situations - by a court decision.

But the Supreme Court in the relevant Resolution clarified the following point: in view of the fact that our codified labor legislation 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 damages caused by any kind of illegal actions (inaction) of the employer, including violation of their property rights (for example, delayed payment of wages).

Thus, if we summarize all of the above, we get the following: forced absenteeism is the absence of work by employees due to the fault of their employers, for which, by appropriate court decision, they can receive compensation for lost opportunities and for moral damage.

Find out what forced absenteeism is and what payments are due for forced absenteeism by court order. In the article you will find an order for reinstatement and an objection to the lawsuit.

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What are the payments for forced absenteeism by court decision

Forced absenteeism is the time of absence from work from the moment of illegal dismissal until reinstatement.

What should the organization do if the dismissal for absenteeism is declared illegal by the court

Calculate the employee's average salary.
Reimburse the difference in wages. It may arise if the employee performed work with lower pay, and the transfer to another position is considered illegal.
Pay compensation for non-pecuniary damage, if so decided by the court.

This is stated in paragraph 14 of Part 1 of Art. 21, in art. 394 of the Labor Code of the Russian Federation.

Payment for forced absenteeism by a court decision in case of illegal dismissal is made starting from the next working day after the dismissal. The day of termination of the TD (employment contract) is not subject to additional payment. The courts point to it.

Payment for forced absenteeism in case of illegal dismissal is carried out taking into account average earnings. It is calculated based on payments made for the 12 calendar months that preceded the dismissal. Reason: part 3 of Art. 139 of the Labor Code of the Russian Federation, paragraph 62 of the decision of the Supreme Court of the Russian Federation of March 17, 2004, No. 2.

The court has the right to independently calculate the amount of the average salary on the basis of the salary certificates requested from the organization, and immediately indicate it in its decision. In this case, the employer does not need to calculate forced absenteeism.

Take into account the previously paid severance pay in connection with the dismissal when calculating wages for the period of forced absenteeism. Reason: paragraph 62 of the decision of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2. The court indicates in its decision the full amount to be compensated for the moral damage caused to the employee. The degree of guilt of the organization and the nature of the harm are taken into account.

Is it necessary to set off the amount of average monthly earnings that was paid to the employee for the period of employment during the forced absenteeism

When reinstating an employee who was illegally fired, compensation is paid for the time of forced absenteeism (based on Article 394 of the Labor Code of the Russian Federation). In case of dismissal due to liquidation of the organization or staff reduction, the employee retains the average earnings for the period of his employment.

The labor legislation does not directly address the issues of whether it is possible to take into account the amount of average earnings when calculating compensation for forced absenteeism in cases where, by a court decision, the employee was reinstated at work. The Supreme Court of the Russian Federation explains that the entire amount of compensation paid does not need to be reduced by the amount of average earnings for the period of employment, which the illegally dismissed employee received during the period of forced absenteeism.

The average earnings that a laid-off employee retains for the period of employment is similar to unemployment benefits. This position is taken by the courts. Taking into account the position of the Supreme Court of the Russian Federation, the total amount of average earnings is not taken into account when calculating compensation for the time of forced absenteeism.

The expert of "System Kadra" will tell, in what cases and on what grounds can an employee be fired. From the article you will learn about the general and additional grounds and the ban on dismissal.

How is payment for forced absenteeism made by a court decision if, after dismissal, the employee worked in another organization

Compensation for forced absenteeism is made in in full, not taking into account the amount of wages that the employee received in another organization. Reason: paragraph 62 of the decision of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.

The amounts that were paid to the employee at the new place of work are not taken into account when calculating the average salary.

Is it necessary to pay for the time of forced absenteeism if the employee was unreasonably denied employment

Forced absenteeism due to the fault of the employer is paid if the employee did not receive earnings due to:

illegal dismissal,
wrongful suspension from work.

A prerequisite for the reimbursement of wages is the existence of an employment relationship between the employee and the employer. This is stated in article 234 of the Labor Code of the Russian Federation. Labor legislation establishes that an employment contract must be concluded between the parties or the employer actually allowed the employee to work. Accordingly, there is no need to reimburse the salary to the applicant in the event of an unreasonable refusal to hire, if he was not allowed to work with the knowledge of the employer or his legal representative. Refusal in itself does not indicate the emergence of an employment relationship. Therefore, the applicant does not have the opportunity to demand any payments.

Who is obliged to pay for forced absenteeism of the Labor Code of the Russian Federation, if the organization is liquidated at the time of the decision by the court

An employee who was dismissed in violation established order or without reason, subject to reinstatement. He is entitled to the payment of average earnings for the entire time of forced absenteeism (taking into account part 2 of article 394 of the Labor Code of the Russian Federation).

Is forced absenteeism included in the length of service in case of illegal dismissal

Forced absenteeism is included in the length of service, giving the right to annual paid leave, taking into account Article 121 of the Labor Code of the Russian Federation.

Payment for forced absenteeism in case of illegal dismissal is carried out taking into account average earnings. It is calculated based on payments for the 12 calendar months that preceded the dismissal. An employee who was dismissed in violation of the established procedure or without reason is subject to reinstatement at work.

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?

The prescribed salary is formally calculated according to a similar scheme. 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.

Help in solving issues related to the protection of the rights of the employee! In the practice of the Bar Association "Gribakov, Polyak and Partners" of the city of Moscow, there are a large number of successful cases on the recovery of wages during forced absenteeism and compensation for non-pecuniary damage. Contact.

Claims for the recovery of wages for the time of forced absenteeism and compensation for non-pecuniary damage are often found in lawyer practice.

According to Article 392 of the Labor Code of the Russian Federation, an employee has the right to apply to the court for resolution of an individual labor dispute, including a claim for the recovery of wages for the time of forced absenteeism and compensation for non-pecuniary damage, within three months from the date when he found out or should have find out about the violation of his right, and for disputes about dismissal - within one month from the date of delivery of a copy of the dismissal order to him or from the date of issue of the work book.

Article 391 of the Labor Code of the Russian Federation provides a list of individual labor disputes directly considered in courts of general jurisdiction upon applications from employees, such as: reinstatement regardless of the grounds for termination of the employment contract, change in the date and wording of the reason for dismissal, transfer to another job, payment for the time of forced absenteeism or payment of the difference in wages for the time of performing lower-paid work, illegal actions (inaction) of the employer in the processing and protection of the employee's personal data and individual labor disputes.

According to part 2 of article 394 of the Labor Code of the Russian Federation, upon reinstatement at work, the employee is paid for the time of forced absenteeism.
The average earnings for calculating the payment for forced absenteeism is determined in accordance with Article 139 of the Labor Code of the Russian Federation and the Regulations on the Peculiarities of the Procedure for Calculating Average Wages, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922.
The calculation of average earnings, regardless of the mode of operation, is based on the wages actually accrued to the employee and the time actually worked by him for the 12 months preceding the moment of payment. collective agreement other periods may be envisaged for calculating the average wage, if this does not worsen the position of the employees.

The amount of payment and the period for which the amount is paid must be indicated in the court decision and writ of execution. This amount can be reduced by the amount of the severance pay paid to the employee upon dismissal.

It should be borne in mind that payments for the time of forced absenteeism are made simultaneously with the issuance of an order to cancel the dismissal. As the Supreme Court of the Russian Federation pointed out, the meaning of the reinstatement procedure lies precisely in the abolition of the legal consequences of dismissal by canceling the dismissal order (and not by issuing an order for reinstatement after a court decision). Consequently, the obligation of the employer to pay wages for the period of forced absenteeism occurs simultaneously with the cancellation of the dismissal order and the reinstatement of the employee in his previous position. This payment is an integral part of the reinstatement process.

The employer cannot independently reduce the amount set by the court. The salary that an illegally dismissed employee received in another organization or in the employment service as unemployment benefits does not reduce the amount of payment for forced absenteeism (paragraph 62 of the Decree of the Armed Forces of the Russian Federation dated March 17, 2004 N 2). Therefore, the employer cannot reduce the amount of wages during forced absenteeism by the amounts received by the employee in another job.

Labor legislation, along with the responsibility of the employer to compensate for material damage, also defines his responsibility for compensating the employee for moral damage.

According to Art. 237 of the Labor Code of the Russian Federation moral damage caused to an employee misconduct or inaction of the employer, is reimbursed to the employee in cash in the amount determined by agreement of the parties to the employment contract. In the event of a dispute, the fact of causing moral damage to an employee and the amount of its compensation are determined by the court, regardless of the property damage subject to compensation.

Moral harm consists in the fact that an employee experiences moral suffering due to a violation of his rights.
In order to ensure the correct and uniform application of the legislation governing compensation for moral damage, the most complete and prompt protection of the interests of victims when considering cases of this category by the courts, the Plenum of the Supreme Court of the Russian Federation in Decree of December 20, 1994 N 10 "Some issues of application of legislation on compensation for moral damage harm" gave an appropriate explanation.
Arbitrage practice recent years demonstrates a steady trend towards an increase in the number of claims for moral damages made by employees in the framework of labor disputes. Despite this, in Russian Federation to this day, there are a number of obstacles to the formation of uniform judicial practice in this category of cases.

The concept of moral harm in the Labor Code of the Russian Federation is absent. However, taking into account the fact that compensation for moral damage in the framework of labor relations is part of the general concept of compensation for moral damage, the definition of this concept should be guided by Art. 151 of the Civil Code of the Russian Federation, according to which moral harm is the physical or moral suffering of a citizen caused to him by actions that violate his personal non-property rights or encroach on other non-material benefits belonging to the citizen.

Accordingly, in relation to labor relations, moral harm is the physical or moral suffering of an employee associated with the employer's misconduct, which can be expressed both in the form of action and inaction.

The presence of physical and moral suffering caused by illegal actions or inaction of the employer must be proven by the employee. Evidence can be, for example: illness, moral suffering caused by the loss of a job and the inability to find another one, the inability to find a job, get the status of unemployed due to the delay in issuing a work book, delayed wages that put the employee in a difficult financial situation, etc.

As a general rule, the obligation to compensate for non-pecuniary damage is assigned to the employer if he is guilty of causing moral damage. Exceptions to this rule are stipulated by law, namely Art. 1100 of the Civil Code of the Russian Federation, which lists cases where compensation for moral damage is carried out regardless of the fault of the tortfeasor, which, in particular, include causing harm to the life or health of a citizen by a source of increased danger.

In the Labor Code of the Russian Federation, with unambiguous certainty, only two cases are fixed when an employee has the right to demand compensation for moral damage. This is the right to demand compensation for non-pecuniary damage in case of discrimination in the sphere of labor (Article 3 of the Labor Code of the Russian Federation) and in cases of dismissal without a legal basis or in violation of the established procedure for dismissal or illegal transfer to another job (Article 394 of the Labor Code of the Russian Federation).

Thus, by Ruling of the Supreme Court of the Russian Federation of January 25, 2008 No. 5-В07-170, the claims of M. were satisfied in terms of recognizing the dismissal order as illegal, reinstating at work, collecting wages for the time of forced absenteeism, compensation for non-pecuniary damage, since the termination of labor agreement under paragraph 2 of Art. 278 of the Labor Code of the Russian Federation is not a measure of legal liability and is not allowed without the payment of fair compensation, the amount of which is determined by the employment contract, and in the event of a dispute, by a court decision.

However, the Plenum of the Supreme Court of the Russian Federation in Resolution No. 2 of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (Decree No. 2) on the issue of compensation for moral damage to an employee clarified the following: given that Labor Code The Russian Federation does not contain any restrictions for compensation for non-pecuniary damage and in other cases of violation of the labor rights of employees, the court by virtue of Art. 21 and 237 of the Labor Code of the Russian Federation has the right to satisfy the employee's claim for compensation for moral harm caused to him by any illegal actions or inaction of the employer, including in case of violation of his property rights (for example, in case of delay in payment of wages).
Thus, an employee can claim compensation for moral damages in all cases of unlawful behavior of the employer, including in connection with dismissal without a legal basis, illegal transfer to another job and the imposition of a disciplinary sanction, delayed payment of wages.