As a practicing psychologist, I often hear from my clients questions related to family business. And before giving specific recommendations, I always try to analyze the origins of the problem situation.

The reason why many entrepreneurs strive to make a relative a business partner is quite understandable: it is the desire to have a person by your side whom you can completely trust. Total distrust is one of the widespread diseases of Russian business. Therefore, many succumb to this temptation.

Why are there problems in the family business? The main reason is that the relationship itself is very intense, emotionally intense. Therefore, keeping the peace is always a huge challenge in any intense relationship, be it marriage or friendship. Now let's multiply the risks of close family relationships by the risks of equally close relationships in business. The combination of both becomes a literally explosive mixture. That is, the conflict in these relations was already laid down from the very beginning.

Let me give you an example. The head of a trade and production holding attracted his older sister, who did a lot for his upbringing, to manage one of his companies. Two years later, it turned out that the sister was too loose with the company's money and caused him nearly three million dollars in damage. It is understandable if an employee behaved dishonestly - this is one thing, if a loved one did it - this is a personal tragedy.

The main reason for conflicts in family companies is that their founders often do not take into account that successful business relationships are hierarchical and structured, and that kindred relationships are more of a parity. Therefore, the functional and role expectations of all participants in the family business should be very clearly spelled out. That is, each partner must unambiguously understand his role and his functions, and in the same way as the other understands it. And first of all, it concerns the making of significant decisions. It is important that, according to Suvorov, "every soldier knows his own maneuver."

What can you advise if the situation has reached an extreme point and you can no longer work together? One must be able to look at it from the outside. Imagine that you are telling someone else about this and at this moment you are not a nephew, not an uncle, not a son, not a father, you are a leader. Eliminate all emotions and actualize your very managerial role. This can be extremely difficult to do, but this is the only effective recipe. As a result, you will be able to give a more objective assessment of the actions of the employee-relative, which will help you decide on this difficult step.

But my main advice: before starting a business with your loved ones, you need to measure it a hundred times and cut it off only once. Good relationships (and family relationships all the more so) in themselves have an independent value, many times higher than the value of business relationships. And going through the crucible of business with a loved one, we put this relationship in serious danger.

Recently, the society has been discussing the ban on joint work of close relatives, which has been canceled by the new Labor Code of the Russian Federation. Supporters of lifting the ban refer to democratic rights and principles of freedom of business, opponents argue that such a policy creates the basis for the development of corruption, injustice and infringement of the labor rights of ordinary citizens.

Who is considered a close relative by law?

In order to correctly interpret and apply the rule of law, we must clearly understand the terminology. Therefore, we will define the concept of "close relative". To do this, we turn to the legislation of the Russian Federation.
Consider who are close relatives by law. The term is used in the wording of articles, but its meaning is disclosed indirectly. The legislation contains only abrupt explanations. The Labor Code does not fully cover this concept, so let's turn to other sources.
We will take the definition given by the Family Code of the Russian Federation as a basis and guideline. According to Art. 14 of the Family Code of the Russian Federation, close relatives include:
- parents;
- children;
- grandparents, grandchildren;
- brothers, sisters (full and incomplete);
- adoptive parents and adopted children.
But such an interpretation implies a number of obvious flaws and needs to be supplemented. Russian legislation does not cover this issue. In other normative acts, this list remains unchanged, and nephews, spouses, relatives of spouses, spouses of children are not included in it.

About spouses

Spouses are not close relatives. This follows from Article 2 of the Family Code of the Russian Federation, which says that spouses are family members equal to parents and children. But at the same time, there is no statement about the recognition of their close relatives. Article 14 of the Family Code of the Russian Federation defines the bonds of consanguinity, which the husband and wife do not have. Thus, relations are established between spouses not of kinship, but of properties. Close relatives of one of the spouses do not acquire kinship status in relation to the other spouse, but become in-laws.

Other nuances

Within the framework of the topic, it is advisable to highlight the labor relations of not only close relatives, but also to touch on in-laws, since the factual side of the issue is important to us. In practice, in-laws are often no less intimate than relatives. In this regard, violations of the law are possible in the form of unjustified privileges or discrimination in relation to them in the labor process and, according to the state, a fertile ground for corruption is created.

Problems related to labor relations of relatives

Disputes about the advisability of banning close relatives from entering into labor relations, provided that one is subordinate to the other, are also relevant in 2017. The fact is that earlier the law provided for such a circumstance and regulated this process. But now the decision is left to the discretion of the owners of the companies.
The following arguments are put forward by supporters of the prohibition of the employment of relatives:
- it provokes corruption and other malfeasance;
- it negatively affects labor productivity;
- it causes discrimination against other employees;
- this puts employees, endowed with the same rights and obligations, in a deliberately unequal position, which is contrary to the Labor Code of the Russian Federation;
- family ties prevent the leader from objectively assessing the work of such subordinates.
On the one hand, these arguments are justified, but such a prohibition contradicts the right of the business owner to hire the people he wants to hire into the organization. By prohibiting the employment of relatives, the state will restrict the rights of entrepreneurs, which will be a step back from the point of view of the culture of law.

In public service

Previously, the law regulating labor relations contained Article 20 of the Labor Code, which prohibited the joint work of close relatives if their work implied subordination or control over each other. There is no such provision in the new legislation. According to many citizens, this infringes upon the rights of other workers who are not relatives of the managers.
Unlike the Labor Code, which was in force earlier, the Labor Code of the Russian Federation excludes provisions that restrict the right of close relatives to work in the same enterprise, even if they are in a position of subordination or control among themselves.
But these restrictions continue to apply to government civil servants. According to Art. 16 of the Federal Law of 27.07.2004 N 79-FZ "On the State Civil Service of the Russian Federation". This Law prohibits civil servants who have a kinship or inherent relationship from being in a relationship of subordination or control to each other. This applies to parents and children, spouses, brothers, sisters, as well as brothers, sisters, parents, children of spouses and spouses of children. Therefore, government officials are partially subordinate to the prohibition on joint work of close relatives.
The Law on Combating Corruption of the Russian Federation specifies in which state bodies and departments relatives cannot work:
- in state corporations;
- in the Pension Fund of the Russian Federation;
- in the Federal Compulsory Medical Insurance Fund;
- in public companies;
- in the Social Insurance Fund of the Russian Federation;
- in other organizations that are created by Russia on the basis of federal laws.
Employees of such organizations are assigned a special legal status, special working conditions are established, duties and restrictions are assigned that may contradict the Labor Code of the Russian Federation.
These measures are taken to combat corruption. It is difficult to judge the effectiveness of the program at the moment, but it nevertheless presented certain problems to unscrupulous officials.

What should an official do if, on duty, he has to interact with a relative?

There is a likelihood of a situation arising when a civil servant checks in a company whose CEO will be, for example, his son or brother, etc. Here there is a possibility that he will assess the circumstances biasedly, will indulge a relative, help to avoid punishment, etc. The decision made can be challenged when opening the circumstances of the case. The state recommends that officials avoid such situations.
To solve such problems, special commissions were created. When a civil servant finds himself in a quandary, such as inspecting boat racks in the area where his son opened a boatmen's club, he should contact the commission with an explanation of the situation and wait for further instructions without taking any action.

Relatives and government orders

It often happens that, by a happy coincidence, a large state order is received by a company whose owner is a relative of a responsible official. On the one hand, this outcome may be fair, but there are also opposite situations, when a civil servant simply takes advantage of his position.
Changes in the Federal Law "On the contract system in the procurement of goods, works, services to meet state and municipal needs" partially solved the problem. Now the relatives of the contestants cannot be present on the commission. However, there are many other areas that, to this day, are not controlled by the law.
A situation that presupposes a personal interest of a civil servant in making a decision in the performance of official duties is called a conflict of interest. In this sense, personal interest, which usually consists in a possible material benefit, can embarrass an official and persuade him to violate job descriptions, allow indulgences in relation to a relative, an organization related to him, or an unfair decision.
From the above material, we can conclude that family and inherent relationships can become the reason for the violation of labor discipline and the commission of official crimes by officials.

For employment

It should be noted that Art. 64 of the Labor Code of the Russian Federation introduces a ban on discrimination when concluding an agreement, that is, everyone should have equal conditions in employment. According to the legislation, the selection of candidates for the position is made on the basis of assessing the business qualities and skills of the candidates. Accordingly, the employer has no right to refuse a person employment due to the presence of family ties with one of the employees of the enterprise.
Also, hypothetically, it is possible to imagine the opposite situation, when a person holding a managerial position prevents his relative from finding employment in the same company. The reasons for this behavior can stem from life circumstances and the nuances of interpersonal relationships in the family.
Abuse of official authority is a common problem for organizations operating in the Russian Federation. The attachment of relatives and in-laws to well-paid jobs is quite common. This often affects the quality of the product or service provided. At the same time, the employer rejects worthy candidates with a higher level of qualifications.
Globally, the consequence of this injustice is the drain of personnel from Russia. The state must find ways to combat this problem. However, prohibitive measures will not be effective in the modern world. It is best to create conditions for healthy competition between enterprises, so that it is not profitable for the employer to employ specialists with low qualifications. In this case, companies will select personnel not on the basis of kinship, inherent or friendly relations, but on professional qualities.

The essence of the problem and why the state is taking the path of weakening control

Since the entry into force of the Labor Code of the Russian Federation, this problem has become significantly aggravated. It has passed the framework of law, has become social and national. The ban established by the Labor Code did not allow exclusively joint related work of employees in leadership positions, and employees of schools, hospitals, etc. were included in the list. Citizens could work as families, there were dynasties of working professions. This resulted in professionalism and high rates of labor productivity. But at the same time, incidental situations arose, for example, in a rural school there was no one to teach children, except for the father-director and the son-teacher, who had no right to occupy these positions due to kinship.
After a bad experience with prohibitive policies, the legislature concluded that the state should not interfere in this area. Moreover, every year the number of private companies grew, often based on family and inherent ties. Now Art. 3 of the Labor Code of the Russian Federation, which prohibits an employer from hiring employees on the basis of kinship or other subjective criteria that are not related to professional qualities.
Since kinship or property has nothing to do with skills, this criterion should not be considered by law as a reason to accept or not accept an employee. In this sense, the Law "On Combating Corruption" in the clauses prohibiting the employment of close relatives in the civil service, contradicts the Constitution of the Russian Federation and the principles of labor law, since civil servants are actually deprived of the right to work without discrimination on any grounds (in this case, the role of the presence of kinship or property appears).
The law contradicts the Constitution of the Russian Federation, as it goes against the presumption of innocence. In other words, the legislator assumed that all civil servants who are in a position of subordination and subordination and have a degree of close kinship or property are corrupt. This approach to solving the problem seems regressive from the point of view of the rule of law. A good goal in the form of combating corruption does not justify means that are contrary to the principles of labor law and the Constitution of the Russian Federation.

The problem also affected medical workers

Under the same Anti-Corruption Law, federal medical centers are obliged to organize personnel policy in such a way that there are no family or inherent ties between employees and managers. The main way to solve this problem is dismissal, transfer to another position is provided.

What is required of leaders?

In December 2016, the Ministry of Health sent written recommendations to all federal medical centers with instructions to dismiss employees with family ties. For failure to comply, the manager could be deprived of his position on the basis of loss of confidence. Then there were layoffs, several big names appear in the abbreviated list. Among them are Olga Chazova, daughter of I. about. director of the cardiological research and production complex Irina Chazova. Deputy Director for Research Alexei Kubanov, the son of the head of the center, left the State Research Center for Dermatovenereology and Cosmetology.

In municipal institutions

According to Art. 13 of the Federal Law "On Municipal Service in the Russian Federation" an employee of a municipal institution who is directly subordinate to the head of administration cannot be his relative. The rest of the employees of municipal institutions are not mentioned in the Federal Law.
At the same time, the labor relations of relatives in the format of subordination or control are regulated by the legislation of the constituent entities of the Russian Federation. Most regions adopted a position in accordance with federal laws and forbade leaders to have close relatives under their authority.

In business

Private enterprises, companies, individual entrepreneurs and individuals have the right to hire employees without violating the legislation of the Russian Federation, regardless of their family or inherent ties. This is a completely progressive step towards the rule of law. The removal of the prohibitive policy indicates a gradual decline of the legal position of the government towards private law.
Given these circumstances, a number of conclusions suggest themselves:
- the state is slowly moving towards giving business complete freedom of action, creating a free market;
- enterprises are able to create family dynasties, dynasties of craftsmen may appear in various industries;
- it is necessary to ensure strict control over the observance of the norms of the Labor Code of the Russian Federation in non-state enterprises.
The more permissions and opportunities appear, the more temptations. The risk of violation of the rights of some employees in favor of others who are relatives of managers increases. To compensate for this imbalance, the state authorities, and in particular the Ministry of Labor and Social Protection, must ensure the observance of workers' rights and counteract discrimination in labor relations.
The labor inspectorate should take an active part in monitoring compliance with the law, regularly carry out inspections and protect the infringed rights of any of the parties. Currently, this practice is not very popular. As a rule, the inspectorate acts only on complaints or applications from citizens who do not come there so often due to legal illiteracy and legal nihilism of the majority of Russians.

Conflict of interest

High-ranking employees of municipal enterprises, as well as civil servants, find themselves in situations of conflict of interest. This occurs when their action or inaction in a work situation is self-interested. Thus, a municipal employee is free to decide certain issues in favor of his relatives or in-laws. It is difficult to prove the composition of even an obvious abuse of office.
The situation of a conflict of interests among municipal employees, in contrast to civil servants, is in no way qualified by Russian legislation, so it is difficult to prove the guilt of a person who abuses his position in such a situation.

Conclusion

Close relatives at work should not have any advantages or disadvantages. In a civilized state, such a gradation in the field of labor law is unacceptable. Workers should be recruited and remunerated based on their qualifications and productivity. A similar position is contained in the Constitution of the Russian Federation and the Labor Code of the Russian Federation. Therefore, the position of the legislative branch with regard to the lifting of the ban on cooperation of close relatives is quite justified.
On the other hand, the policy of the authorities, which was expressed in Art. 16 of the Federal Law "On the State Civil Service of the Russian Federation" and the Federal Law "On Combating Corruption". It is unlikely that such measures will prevent corrupt officials from abusing their powers, given that conscientious and qualified employees, being relatives of the leader, can no longer occupy one or another public office.
Labor relations are a delicate sphere of public life; the labor rights of citizens must be protected by the state. The employee must feel protected from unfair decisions by the management. At the same time, he must fulfill his job duties in good faith so that the employer's rights are not infringed upon.

Grasp long truancy is not legally enshrined. The Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) defines truancy, but it is not tied to its duration by days, weeks or months.

If the employee was absent from the workplace without good reason during the entire working day (shift), regardless of his (her) duration, or at least more than 4 hours in a row, this is already considered truancy... And it doesn't matter if there was such an absence at the beginning, in the middle or at the end of the working day (shift) (subparagraph "a", clause 6 of the first article 81 of the Labor Code of the Russian Federation).

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

For ease of orientation in the question of interest to us, we will divide absenteeism into two conditional categories:

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

Short-term absenteeism: algorithm of actions

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

The order of the employer in such situations is clearly described in Art. 193 of the Labor Code of the Russian Federation. Prior to the application of a disciplinary sanction, which in this case may be dismissal for absenteeism, the employer must request from the employee written explanation... If after 2 working days the specified explanation is not provided by the employee, then an appropriate act is drawn up. In this case, the employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction. Statement of refusal to provide explanations drawn up with the signatures of the employees present. It is also necessary to document the absence of an employee on a certain day at the workplace by drawing up an act or collecting other evidence (testimony of witnesses, reports of the direct supervisor of the truant, extracts from the register at the checkpoint, etc.).

If the reasons given by the employee in the explanatory note on the fact of absenteeism are not recognized by the employer as valid, or the employee refused to give explanations, the employer has the right to apply a disciplinary sanction in the form of dismissal. Order the employer on the application of a disciplinary sanction is announced to the employee against a personal signature within 3 working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order for signature, then an appropriate act is also drawn up.

Long absenteeism: features of documenting this fact

During long absences, it is usually not possible to find an employee and request an explanation from him regarding the reasons for absence from work (for example, when an employee does not appear at work, does not answer calls, there is also no information about him at his place of permanent residence).

The problem of dismissal during long absenteeism is somewhat more difficult than with classic blitz absenteeism, for a number of reasons. With a prolonged absenteeism, objective difficulties arise in the strict observance of the requirements of Art. 193 of the Labor Code of the Russian Federation.

If the employee does not appear at the workplace, then, accordingly, it becomes difficult to receive explanations from him about the fact of absence from work. However, the law does not prohibit in such cases request an explanation from the employee by sending him mail or telegrams to the address indicated in the employment contract and the employee's personal file.

If the registration address in the passport differs from the actual place of residence that you may have, then it is better to send the request for explanations to all addresses.

In judicial practice, there have been cases when the court reinstated an employee at work on the grounds that it considered the receipt for sending a letter to the employee as improper evidence that the letter contained precisely the requirement to provide explanations for the fact of absence from the workplace. Therefore, it is better to send to the employee:

• a valuable letter with an inventory of the attachment and a return receipt, or
• telegram. It should be sent with an acknowledgment of receipt, as well as with the obligatory receipt by telegraph of a certified copy.

For the texts of these documents, see Examples 1 and 2. The text of the letter can be more detailed, because here you are not limited by the space allotted for the text in the form of a telegram. The employer must be the sender of the correspondence.

Example 1

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Example 2

Text of a telegram demanding an explanation of the reason for absence from work

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We ask you to explain the reasons for your absence from work from August 01, 2014 to the present. If no explanation is given about the reasons for absence from the workplace within two working days, you may be subject to disciplinary action in the form of dismissal for absenteeism.

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Natalia Plastinina

After 2 working days from the date of delivery of the request sent to the employee, by virtue of the provisions of Art. 193 of the Labor Code of the Russian Federation, the employer has the right to record the failure to provide an explanation for the fact of absence from the workplace.

However, in the event of a missing person, the countdown of dates is somewhat difficult - the employee does not come to the post office and does not receive a notification from the employer. In this case, the post office, in accordance with the postal rules, stores the postal item for 1 month. If the addressee does not receive it, despite repeated postal notifications, after this period, the postal item is returned to the sender. In our case, it is an enterprise. From the date of receipt of the returned letter or notification of delivery, 2 working days should be counted and an act should be drawn up on the employee's failure to provide explanations for the fact of absence from the workplace.

At the same time, both in case of receipt of correspondence by the employee, and in case of its return to the sender after the expiration of the storage period, the fact that an employee is absent from the workplace should be recognized from the first day of absence from work (see Example 3) or confirm with a set of other evidence (absence of the employee's signature in the register at the checkpoint, reports of the immediate superiors, etc.). However, the act is better because it contains the signature not only of the immediate superior, but also of witnesses whom the court considers to be more independent persons, therefore, it is better to attach the rest of the evidence to the act.

It is better to draw up certificates of no-show for each day of absence of an employee from the workplace. At the same time, we strongly recommend that you do this day after day, and not "retroactively", since in the event of a trial, this fact may be revealed, which may lead to a decision not in favor of the employer. In this situation, the act should be drawn up at the end of the working day, then it will be possible to state in it that the person was absent from work all day.

If the employee received a letter, telegram, about which there is a mark on the notification, but did not appear at work, did not provide an explanation of the fact of absence within 2 working days, an employer can safely fire a truant.

Example 3

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If the employee then appears at work (after all, the reasons for his absence may be objective, and then he has nothing to fear: after recovery or the termination of the emergency, he can return to work), he will need to be familiarized with all acts of absence from the workplace under signature. But if he refuses, then the fact of refusal will have to be activated - this can be done as a single document regarding the refusal to sign for acquaintance with a whole set of papers, then in the act of refusal they will need to be listed individually, for example, like this:

Example 4

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A similar text is placed after the words "this act has been drawn up about the following:" (marked with an exclamation mark in the sample act from Example 3). The rest of the recipe for making these acts is the same.

It should be noted that in practice there are cases when employees, trying for various reasons to cause inconvenience to employers, specifically hide the fact of being on sick leave, and then appeal against illegal dismissal (according to Article 81 of the Labor Code of the Russian Federation, the dismissal of an employee at the initiative of the employer, except in the case of liquidation organization or termination of activities by an individual entrepreneur, during the period of his temporary incapacity for work and during the period of being on vacation is not allowed), while they require payment for forced absenteeism.

But in such situations, the courts take the side of employers, referring to paragraph 27 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2. When the court establishes the fact of abuse of the employee's right, the court may refuse to satisfy his claim for reinstatement at work ( the request of an employee who was dismissed during a period of temporary disability, the date of dismissal), since in this case the employer should not be held liable for adverse consequences resulting from unfair actions on the part of the employee.

If the sent correspondence with a request to give explanations on the fact of absence from work was not received by the employee (the letter was returned after the expiration of the storage period, no one opened the door to the postman to hand over the telegram), it is better for the employer to insure himself and take a number of additional measures to find the missing person: apply to the police with a wanted statement, try to find out from the employee's relatives (if the employer has information about them) what happened to him, send inquiries to hospitals. In practice, few employers take such measures, since they require an investment of time and effort. Therefore, employees who are absent from work for a long time for unclear reasons are fired for absenteeism without establishing the reasons for their absence.

However, if the reasons for the absence are subsequently recognized by the court as valid, the court will reinstate the employee in the workplace and oblige the employer to pay all amounts due to him, including forced absenteeism.

In addition, a new employee may already be hired to replace an improperly dismissed person by the time of the trial, who will have to be transferred to other positions or to solve this problem by increasing the number of staff positions.

In order to avoid such negative consequences, it is better for the employer to take all available measures to find an employee, despite the fact that the law does not oblige the employer to search.

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Natalia Plastinina, Head of the Sector for Legal Support of the Bank's Branch

And yet the absenteeism act and the requirement to provide an explanation only record the employee’s absence, but “do not dig deeper”. In a situation where a person is missing, it will not be superfluous to conduct an official investigation, including with the involvement of the own security service. To do this, by order, it is necessary to appoint the composition of the commission for the investigation, as well as set the time frame for the investigation. Even if the investigation did not give any results, this must also be recorded, for this a official inquiry in any form. It can reflect all the information collected: even a media report about a terrorist attack, if the disappearance of a person coincided with it, the data of the correspondence of the “disappeared” in social networks, not to mention the official responses from law enforcement and other agencies.

After considering the results of the internal investigation and the package of collected documents, the manager may decide to terminate the employment contract with the missing employee. Of course, an employee's absence from work does not oblige every employer to immediately formalize his dismissal. The law does not require such steps from employers. And yet, keeping "dead souls" is not in the interests of employers who need to get the planned amount of work done. Therefore, most managers decide to end their employment relationship with "dead souls".

In the event that an employee is lost for unknown reasons, the most appropriate of the grounds provided for by the Labor Code of the Russian Federation is sub. "A" clause 6, part 1 of Art. 81 of the Labor Code of the Russian Federation - dismissal for absenteeism. Other grounds, including those listed in Art. 83 of the Labor Code of the Russian Federation, in this case, cannot be applied. For example, it would be wrong to terminate an employment contract under clause 6 h. 1 of Art. 83 of the Labor Code of the Russian Federation - "death of an employee ..., as well as recognition by a court of an employee ... deceased or missing", since the employer will not have a death certificate for this. Even if there is reason to believe that a colleague was killed or missing (for example, he was supposed to fly on vacation to a country where riots took place at about the same time), as long as there is no documentary evidence of this, he should be considered a truant.

Dismissal for long absenteeism: the main difficulties

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

How to familiarize with the order?

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

Date of termination of employment

The problem is that according to Art. 84.1 of the Labor Code of the Russian Federation on the day of termination of the employment contract in all cases is the last day of work of the employee, except for cases when the employee did not actually work, but in accordance with the Labor Code or other federal law, the place of work (position) was retained for him.

Based on this norm, the day of dismissal should indicate the last day of work, that is, the day before the first day of absence... So, if the employee did not go to work on August 1 and within the next few days did not appear at the workplace, then July 31 should be indicated as the day of dismissal.

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

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

This point of view is supported by the Federal Service for Labor and Employment. According to her letter dated 11.06.2006 No. 1074-6-1 “one of the grounds for dismissal for absenteeism (sub.“ A ”, clause 6, part 1 of Article 81 of the Labor Code) may be the abandonment of work without a valid reason by a person who has entered into an employment contract both for an indefinite and for a certain period. As a general rule, in all cases, the day of dismissal of an employee is the last day of his work. When an employee is fired for absenteeism, the day of his dismissal will be the last day of his work, that is, the day preceding the first day of absenteeism. "

Confirmation of the fidelity of this position is also contained in part six of Art. 84.1 of the Labor Code of the Russian Federation, according to which the employer is not responsible for the delay in issuing a work book in cases of non-coincidence of the last day of work with the day of registration of the termination of labor relations when the employee is dismissed on the basis provided for in sub. "A" clause 6 of the first part of Art. 81 or paragraph 4 of Part 1 of Art. 83 of the Labor Code of the Russian Federation. Thus, the legislator points out that upon dismissal for absenteeism, the last day of work does not coincide with the day of registration of the termination of labor relations.

Undoubtedly, this point of view is more substantiated and is supported by Rostrud and the State Labor Inspectorate during inspections. However, the position regarding the coincidence in the order of dismissal of the date of issue of the order with the date of termination of the employment relationship has the right to exist, since in cases where the date of termination of the employment relationship is indicated in the order of dismissal on the last working day, disputes may arise in court on this issue, which may or may not be resolved in favor of the employer. And in cases where the dates coincide, the courts, as a rule, do not make claims, since employees do not require them to change the date of dismissal from a later one to an earlier one.

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

Grounds for dismissal for absenteeism

In practice, there are cases when, upon dismissal for absenteeism, which dragged on for a month, only the act for one of the days of absenteeism was indicated in the order on the basis of the dismissal, and the employee at the court presented evidence of the validity of absence from the workplace on that day (a certificate from the trauma center and etc.), and he was reinstated at work according to the court.

In order to avoid such situations, some experts recommend in the order of dismissal to indicate, for example, that "for absenteeism on August 01, 2014, for absenteeism on August 02, 2014 ... for absenteeism on August 09, 2014" apply a disciplinary measure - dismissal. Since the labor legislation does not contain restrictions on the possibility of applying one penalty for several offenses, if a truant presents supporting documents for 1-2 days of absenteeism, then for the rest he will no longer be able to justify himself. However, there are also opponents of this position. However, orders that indicate several absenteeism (several days of absenteeism) are generally recognized by the courts as legal. See the wording of the grounds for dismissal in Example 5 marked with the number 3.

Terms of application of disciplinary sanction

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

According to Art. 193 of the Labor Code of the Russian Federation, a disciplinary penalty is applied no later than 1 month from the date of discovery of the misconduct, not counting the time of the employee's illness, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees.

A disciplinary sanction cannot be applied later than 6 months from the date of the misconduct, and based on the results of an audit, audit of financial and economic activities or an audit - later than 2 years from the date of its commission. The specified time limits do not include the time of the criminal proceedings.

It should be borne in mind that judicial practice has developed such a concept as "prolonged absenteeism", which assumes that the moment of detecting truancy is not the day on which the absence of the employee was discovered, but the moment when the reasons for his absence are found out: it is at this moment that the offense is considered complete and discovered. However, the court, when considering each specific dispute, can resolve this issue in a different way, therefore it is better for the employer to insure himself, and if evidence of absenteeism is collected, then try to have time to formalize the dismissal within a month (that is, choose those dates of absence of the employee from the workplace that are included in the monthly period until the date of issue of the order). First of all, the waiting period for a response to a request sent by mail will interfere here.

Employment history

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

According to part six of Art. 84.1 of the Labor Code of the Russian Federation “in the event that on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer must send the employee a notice of the need to come for the work book or agree to send it by mail. From the date of sending the said notification, the employer is released from liability for the delay in issuing the work book. "

Example 5

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Thus, on the day of issuing a dismissal order for absenteeism and making an entry in the work book, the employer must send a letter or telegram to the employee about the need to come for the work book or agree to send it by mail.

Example 6

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Missing person…

Now let's consider the option when the employer did everything possible to find the employee: he filed a corresponding statement with the police, interviewed relatives, acquaintances of the missing employee, phoned hospitals, etc. However, the comprehensive measures taken to search for results did not bring any results: the employee disappeared and no one knows what happened to him. For such cases, the law provides for the option of terminating the employment contract on the basis of clause 6 of the first article. 83 of the Labor Code of the Russian Federation: "Death of an employee or employer - an individual, as well as adjudication of an employee either an employer who is an individual deceased, or missing».

If there is no news from the missing employee for more than a year, the employer may, in court, recognize him as missing, guided by the provisions of Art. 42 of the Civil Code of the Russian Federation and chapters 31 of the Code of Civil Procedure of the Russian Federation. So, according to Art. 42 of the Civil Code of the Russian Federation, at the request of interested persons, a citizen can be recognized by the court as missing if, within a year, there is no information about his place of residence at his place of residence. If it is impossible to establish the day of receipt of the latest information about the absent, the beginning of the calculation of the period for recognizing the unknown absence is the first day of the month following the one in which the last information about the absent was received, and if it is impossible to establish this month - January 1 of the next year.

And if the court satisfies the stated requirements for recognizing the missing employee as missing, the employer will be able to terminate the employment contract with this employee under paragraph 6 of part one of Article 83 of the Labor Code of the Russian Federation.

Example 7

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"Missing" or "truant": how to make the right choice?

So, the legislation offers 2 options for terminating labor relations with a long-term absent employee. In this regard, the question arises: in what cases should an employee who has not come to work for a week, a month or more should be dismissed for absenteeism under Art. 81 of the Labor Code of the Russian Federation, and when one should expect news about him for a year or more, and then, applying the procedure for recognizing a missing citizen as missing in court, terminate the employment contract under clause 6 of Part 1 of Art. 83 of the Labor Code of the Russian Federation?

In each specific case, the employer needs to make a decision based on many factors: moral characteristics of a person, his status, business qualities, permanent residence, territorial jurisdiction of cases of reinstatement at work and recognition of a citizen (missing employee) as missing, etc.

Dismissal for truancy is always a disciplinary measure. Therefore, in each specific case, it is necessary to decide whether it is possible to apply a penalty to an employee if the reasons for his absence from the workplace are not reliably known.

Example 8

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The management of LLC "BS" addressed the collegium of lawyers with the following problem. Employees E. and L., who work as drivers in this organization for about six months, do not appear at the workplace for almost three weeks. Attempts to get through to them were unsuccessful. Taking into account that E. and L. have permanent residence in another locality, it was not possible to visit their houses either. At the place of temporary residence in a hostel in Moscow, they were also not announced during these 3 weeks. The personnel service in the time sheet put these employees "NN" (failure to appear due to unclear circumstances) during all the days of their absence from the workplace. Also, the absence of E. and L. was recorded from the first day of absence from work.

• check with colleagues in the transport department if there were any expressions of dissatisfaction with work, bosses, etc. on the part of the missing workers, did they mention in their conversations about the possibility of stopping work in the organization (as a result of a survey of colleagues, it turned out that E. and L. talked about returning to their native village in order to visit their families, and then try their hand at another place of work);
• send telegrams to the permanent registration addresses of employees E. and L. with a request to provide an explanation of the reasons for not showing up for work (employee E. received the telegram personally; the telegram addressed to employee L. was received by his wife);
• then it was recommended to wait for a response from E. and L. for about 5 days, and then issue orders to dismiss them for absenteeism. The specified employees did not provide explanations, about which the relevant acts were drawn up;
• on the day the orders were issued (the fact that it was impossible to bring the content of the orders to the attention of the workers was recorded), it was recommended to send telegrams to both E. and L. with a request to come to receive a work book or to agree to send it by mail.

As a result, the issue was resolved, the dismissed employees did not go to court with claims to declare the dismissal illegal.

In this case, the employer established that employees E. and L. did not disappear under unclear circumstances, but went home and decided not to return to work. The truants did not present the validity of the reasons for their absence from the workplace, they did not show their intentions to continue working at LLC "BS" in any way. Therefore, the employer made the right decision by firing these employees for absenteeism.

In situations where an employee who has been working in an organization for several years has established himself as a wonderful specialist and a decent person, suddenly does not go to work, the employer should not make hasty decisions and fire him for absenteeism. The measures taken by the employer to establish the reasons for a person's absence from work may show that he disappeared under strange circumstances - neither relatives, nor friends, nor acquaintances know about his location. Do not be afraid that the employer will have to declare an employee on the wanted list, and then recognize him as missing in court. If the missing person has relatives, then all these actions will be performed by them. The employer will only need to issue an order on the basis of a court decision and make a corresponding entry in the employee's work book.

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The Presidium of the Supreme Court of Russia approved a review of judicial practice on how to punish officials for violating anti-corruption bans

In fact, the document instructs officials to stay away from their relatives in the service, even if the situation seems innocent to someone. For example, if the bailiff has to collect a debt from his own father.

Or a representative of the administration can decide whether the wife's company can receive a government order.

Wherever the interests of the service intersect with family ties, the official must first inform his management. Otherwise, the clerk's career will end.

As the Russian Supreme Court explained, an official can be fired even if the family has won nothing. Let's say the contract went into the wrong hands, and the clerk didn't even try to please his loved one. The very fact of silence about the fact that relatives of the official were included in the number of applicants for the state order is already a violation.

For example, in the Ivanovo region, the deputy head of one of the city administrations was a member of the commission for holding an auction for the right to lease a land plot. And his wife tried her hand at the auction. But she lost. However, the husband was still fired for failing to warn the management about his wife's participation in the auction.

In court, the official assured that everything was fair.

There is no reason not to believe him. However, the official seems to have underestimated the rigor of anti-corruption regulations. He believed that he did not have any conflict of interest, since his participation in the commission could not affect the results of the auction.

Nevertheless, the law obliges officials to be on the alert even in the event of a hypothetical conflict of interest (that is, when there is a danger of confusing their pocket with the state one). Therefore, it is always necessary to warn the management when official affairs somehow overlap with the affairs of the family.

In total, from 2012 to 2015, due to the loss of confidence, about 1.2 thousand officials were dismissed throughout the country.

In this case, as explained by the Supreme Court of Russia, the fact that the plaintiff's wife (and the official tried to appeal against his dismissal in court) did not become the winner of the auction has no legal significance. Indeed, according to the Law "On Combating Corruption", a conflict of interest is understood as a situation "in which the personal interest (direct or indirect) of a municipal employee not only affects, but can also affect the proper, objective and impartial performance of his official (official) duties."

If the plaintiff's wife wins the auction for the right to conclude a lease agreement for a land plot, an appropriate agreement would be concluded with her, on the basis of which the plaintiff's wife would have property rights to the land plot. Consequently, under these circumstances, there was a personal interest of the former boss. Therefore, the dismissal was recognized as legal.

Moreover, the notification must be official. It is not enough to whisper, figuratively speaking, in the ear of the management, it is necessary to report it in writing. This is evidenced by the sad story of a bailiff from the Kemerovo region - another example from the review. The woman had to collect the debt from her own father. It is difficult to imagine her feelings when materials on a parent came to her on the table. But, as the woman assures, she fulfilled her official duty honestly: measures of compulsory execution were taken to her father.

True, the bailiff was dismissed anyway due to the loss of confidence. Reason: she did not report, as it should be, about the family and service problem that had arisen. In addition, doubts arose about her conscientiousness. Although she took some measures, it seems that she did not do everything that was possible. While she was busy with the case, her father managed to sell the car, and it was not possible to collect the debts from him. Now there is nothing to take from him.

In court, the bailiff claimed that she had verbally informed her superiors about her relationship with the debtor. She believed that by doing so she declared her self-rejection and complied with the requirements for the prevention or settlement of a conflict of interest. But the court upheld the dismissal.

As stated in the review, the bailiff had to inform the immediate superior of a personal interest that could lead to a conflict of interest, and to declare self-rejection in writing before the commencement of enforcement actions against the father.

By the way, in the future, officials dismissed for loss of trust may have problems with further employment. At least, it is unlikely that they will be able to get a serious service, especially in the state. Now the State Duma is considering a bill proposing to create a unified register of persons dismissed from the civil service due to the loss of confidence.

According to experts, on this basis, from 2012 to 2015, about 1200 persons were dismissed from their posts. People have lost their posts for various reasons, including false statements on income. It is assumed that the list of officials dismissed due to loss of confidence will appear on the Federal Portal of Civil Service and Management Personnel.

In the work of companies, the problem of competent dismissal of an employee often arises "on article "... It turns out that it is not so easy to fire a slacker or a plunderer of private property, as it might seem at first glance. Failure to comply with the dismissal procedure threatens the employer with a legal battle with the former employee, which the latter will certainly win. In addition, you will have to explain with the prosecutor's office and the labor inspection. This material will help you avoid the above troubles.

First of all, I would like to say that this material is not a guide for a terrorist employer. Trust that juicer companies never take care of the formalities of laying off workers. Such unbearable working conditions are simply created that the employee himself happily writes a letter of resignation. This article will be useful to those who have their own "dogs in the hay" among the workers: they do not work (they walk, drink, steal, etc.), but they do not want to leave either.

Dismissal initiated by the employer

Before disclosing the procedure for dismissing employees, it is necessary to recall the grounds for dismissal at the initiative of the employer. The main list of grounds is listed in Art. 81 of the Labor Code of the Russian Federation:

1. liquidation of an organization or termination of activities by an individual entrepreneur;
2. reduction of the number or staff of employees of the organization, individual entrepreneur;
3. inconsistency of the employee with the position or work performed due to insufficient qualifications, confirmed by the results of attestation;
4. change of the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant);
5. repeated non-performance by the employee without good reason of labor duties, if he has a disciplinary penalty;
6. one-time gross violation of labor duties by an employee:

a) truancy, that is, absence from the workplace without good reason during the entire working day (shift), regardless of its (her) duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day ( shifts);

b) the appearance of an employee at work (at his workplace or on the territory of an organization - an employer or an object where, on behalf of the employer, an employee must perform a labor function) in a state of alcoholic, drug or other toxic intoxication;

c) disclosure of secrets protected by law (state, commercial, official and other) that have become known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee;

d) committing at the place of work theft (including minor) of someone else's property, embezzlement, deliberate destruction or damage, established by a court verdict that has entered into legal force or by a decision of a judge, body, official authorized to consider cases of administrative offenses;

e) violation of labor protection requirements established by the labor protection commission or the labor protection authorized by the employee, if this violation entailed serious consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences;

7. the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to the loss of confidence in him on the part of the employer;

8. the employee, performing educational functions, has committed an immoral offense incompatible with the continuation of this work;

9. adoption of an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;

10. one-time gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;

11. submission by the employee to the employer of false documents when concluding an employment contract.

In addition, special cases of dismissal of certain categories of workers are established by Art. 278, art. 288, art. 336, art. 348.11. Labor Code of the Russian Federation.

As a rule, the desire to fire an employee "under the article" arises from the employer after the employee commits any offense. At the same time, the management gives an categorical command to the personnel service, "Fire to hell!" And the personnel officers scratch their heads, as they are used to dismissing only "on their own."

Now we come directly to the description of the procedure for dismissal at the initiative of the employer.

Assessment of employee actions

Labor legislation in a number of cases uses appraisal categories when characterizing the actions of an employee. A striking example of this is the definition of truancy in paragraphs. "a" clause 6, part 1 of Art. 81 of the Labor Code of the Russian Federation "... absence from the workplace without good reason... ", while the concept of" valid reasons "is not disclosed, leaving this issue to the discretion of the employer and the court. This circumstance often baffles the employer, since respectfulness / disrespect for reasons is a subjective category, because for someone being in a car traffic jam is quite a sufficient excuse for absence from work, but for some such excuses are unacceptable. In this regard, the application of this basis for dismissal is similar to the work of a sapper, one wrong decision and the court will overturn it.

Finally

Before exercising their right to dismiss as a disciplinary measure, an employer should remember that dismissal is a last resort and should only be applied in exceptional cases. In this case, it is necessary to take into account many factors: the severity of the offense, the presence of rewards, penalties, etc.