An employee did not go to work after the weekend, decided to take time off for previously performed overtime work. However, such an initiative was not agreed with either the employer or the HR department. Whether such an act will be considered absenteeism without valid reasons and what consequences it will have – read further.
Absenteeism and its consequences
According to item 4 of part 1 of article 40 of the Labor Code of Ukraine (hereinafter – the Labor Code), an employment contract concluded for an indefinite period, as well as a fixed-term employment contract before the end of its validity period, may be terminated by the employer in case of absenteeism (including absence from work more than three hours during the working day) without valid reasons.
Thus, an employee's absence without valid reasons can be a reason for the employer to make a decision to fire such an employee. At the same time, it should be noted that absenteeism is not only the absence of an employee at work during the entire working day, but also the absence for more than three hours continuously or in total during the working day. A mandatory condition for such dismissal is that the employee does not have a valid reason for not coming to work.
Absenteeism is considered as:
- arbitrary use of days off, regular vacation without agreement with the employer;
- termination of employment duties before the end of the term of the employment contract or the term that the employee must work for a company after graduating from a higher or secondary special educational institution;
- leaving work without notifying the employer with whom an employment contract has been concluded for an indefinite period;
- leaving work before the expiry of the notice of dismissal without the consent of the employer.
Can not be considered absenteeism:
- absence of the employee at workplace, if present at the enterprise;
- failure of an employee to work due to illegal transfer;
- absence from work for valid reasons.
Current legislation does not include a list of reasons for absence from work that should be considered valid. In each individual case, their presence or absence is determined by the employer. The assessment of such reasons should be based on the fact that these reasons must be significant, that is, those that prevent the return to work and cannot be eliminated by the employees themselves. Each of these reasons must be duly substantiated by the employee.
Recording of absenteeism
The employee's absence must be recorded when keeping a daily (shift) record of the use of working time or in another way, for example, by an automated access system. At the same time, it should be remembered that the "absence of an employee at work" is considered to be the employee's stay outside the territory of the enterprise or facility, where they must perform the work assigned to them in accordance with their work duties. Therefore, the absence of an employee at the workplace, but not at the enterprise, is not considered absenteeism and it will not be possible to fire them.
Punishment for absenteeism
Absence of an employee from work without valid reasons (absenteeism) by its very nature is a gross violation of labor discipline and, as a result, entails the imposition of one of the types of disciplinary sanctions - reprimand or dismissal in accordance with the rules established by Articles 147-149 of the Labor Code.
Absenteeism is a violation of labor discipline, for which Article 147 of the Labor Code provides for bringing the employee to disciplinary responsibility, in particular imposing such a type of disciplinary sanction as dismissal, and must be carried out in compliance with the rules established for the application of disciplinary sanctions.
The dismissal procedure for absenteeism must take into account not only the general rules and procedure for dismissal of employees (Part 1 of Article 47, Article 116 of the Labor Code), but also the rules and procedure of dismissal of employees at the initiative of the employer (Part 3 of Article 40, Article 43 of the Labor Code), as well as the terms of application, rules and procedure for imposition, announcement of disciplinary penalties (Articles 147, 148, 149 of the Labor Code), namely:
- only the body authorized to hire this employee has the right to dismiss an employee for absenteeism;
- it is possible to dismiss an employee for absenteeism only with the prior consent of an elected trade union body (during the period of martial law, the provisions of Article 43 of the Labor Code do not apply, except in cases of dismissal of employees of enterprises, institutions or organizations elected to trade union bodies);
- an employee can be fired for absenteeism immediately after the absence, but:
- not later than one month after the discovery of this absenteeism;
- no later than six months from the date of absenteeism;
- if a decision has been made to dismiss an employee for absenteeism, then another disciplinary penalty - a reprimand - cannot be applied to this employee for the same absenteeism.
In order to prevent the employer from unjustifiably dismissing an employee when the latter is dismissed due to absenteeism, it is important to follow the entire dismissal procedure. The employer must bring to the attention of the employees the documents establishing labor duties, working hours, etc. under personal signature, draw up interim documents in accordance with the requirements of the law, and observe the terms of bringing to disciplinary responsibility.
