Forced absenteeism due to the fault of the employer of the Labor Code of the Russian Federation. Forced absenteeism (Labor Code of the Russian Federation)

Absenteeism at work is not always the fault of the employee - it also happens that the employer is to blame. And in this case, the employee is entitled to compensation for forced absence. Let's find out what actions on the part of the employer can be regarded as culpable, and how to achieve compensation payments.

When absenteeism is considered forced

In the event that an employee is unable to perform official duties not through his own fault, but through the fault of the employer, absenteeism is recognized as forced. This can happen if:

the employee was dismissed without legal grounds;
the specialist was removed from official duties without reason;
the work book was returned to the dismissed employee later than the deadline established by law.

How to get compensation for forced absence

If an employee is sure that absenteeism was the fault of the employer, he has the right to go to the labor dispute commission and submit an application. The task of the commission is to establish the fact of forced absenteeism of the applied employee of the enterprise. It will take about 10 days to receive the commission’s decision, after which the applicant must file a claim against the employer in court for reinstatement of the dismissed employee in the workplace, and at the same time for payment of compensation.

Which employee is entitled to compensation for forced absence?

If it is proven that absenteeism was due to the employer’s fault, he will have to transfer to the employee the average monthly salary for the entire time he was absent from work due to his fault. That is, it will be considered that the employee worked.

Compensation will be paid when the court cancels the dismissal, immediately, and not after the court decision comes into force. It also happens that the employer is also required to pay compensation for moral damages to an illegally dismissed employee.

How to calculate the time of forced absence

The start date of forced absence is considered to be the day following the day of dismissal. If the employee was fired immediately after returning to work from vacation, the first day will be the day before the date the order was written. It also happens that an employee was fired, but he went on vacation - then the forced absence starts from the last day of rest.

How is compensation for forced absence calculated?

When calculating compensation for forced absence, payments that were not made for the performance of work duties are not taken into account.

To calculate what compensation an employee should be paid, you need to know the amount of salary for the year preceding the dismissal. Also taken into account:

payments made taking into account increasing factors;
insurance charges;
wage supplements;
regular bonuses.

If the dismissed employee was hired by the company less than a year ago, the salary will be calculated based on the average daily income - the number of days worked will be divided by the earnings for the year (the salary must be received at this particular enterprise).

If the employer paid the terminated employee severance pay, the amount will be deducted from the compensation payment. The fact of payment of the following amounts does not relieve the employer of responsibility:

hospital benefits;
accrual of interest on transactions under the agreement;
accruals from other employers;
insurance benefits for the unemployed.

Compensation for late return of work record book

By law, the work book must be returned to the employee on the day of final payment and dismissal, but it happens that the employer does not issue it on time, and for this reason the person cannot get a job according to all the rules with the new employer. And then the previous employer is also obliged to pay compensation, not based on the salary at his enterprise, but on the salary of the potential employer of the former employee. The fact that they were ready to hire him, but were not hired due to the lack of a work book, must be proven.

Also, compensation will be recovered from the employer if the work book was returned to the employee with an incorrect entry about the reasons for dismissal. If this entry serves as the basis for refusal of employment at a new place of work, the employee has the right to count on compensation for losses.

Legislative acts on the topic

Art. 391 Labor Code of the Russian Federation	On the right of an employee to apply to the labor commission and file a claim in court for payment of compensation for forced absence
Art. 234 Labor Code of the Russian Federation	On payment of average wages for the entire period of forced absence of an employee
Decree of the Government of the Russian Federation dated December 24, 2007 No. 922	The fact that compensation for forced absence cannot be lower than the average monthly salary at the enterprise
Directive of the Bank of Russia dated December 11, 2015 No. 2873-u	On the collection of interest for late payments

Common mistakes

Error: The employer delayed the compensation payment for forced absence, after which it paid it in the amount established by the court.

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If a person understands that the dismissal was not entirely legal, he will seek. In case of a positive court decision, the citizen will receive everything for the period from dismissal to reinstatement.

This period will also be included in his work experience.

What it is?

It is believed that forced absenteeism is a time when a person wanted to work, but did not have a chance to do so due to the fault of the employer.

Important point: Payment upon dismissal of a person in situations that usually entail forced absence is extremely rare.

Normative base

In the process of development of labor law in the field of legal science, a sufficient regulatory and legal framework of labor legislation on this issue was formed:

Tax Code of the Russian Federation;

Causes

Forced absenteeism as a legally indisputable fact can occur for several reasons, the essence of which we will examine in this article.

Due to the employer's fault

Let us note right away that almost the reasons for absenteeism arise solely through the fault of the employer.

In labor law there is the concept of “absenteeism”. As such, there is no concept of “forced absenteeism” in the Labor Code.

Article 81 of the Labor Code defines absenteeism as a person’s absence from the workplace without explanation and a really good reason throughout the entire working day or at least for at least 4 hours.

The employee is solely to blame for such absenteeism.

Due to the fault of the employer, the following reasons for absenteeism for a good reason are distinguished:

№	Cause	Manifestation
1	or transfer to a lower paid position.	Despite all the rules of the Labor Code that prohibit the dismissal of this employee, the employer dismisses him. Transfer to a job with lower pay leads to material losses for the employee and is permitted in exceptional production cases.
2	Unfounded (for example, during translation).	A qualified specialist cannot find a job.
3	Registration after the actual start of the employee’s work activity.	A person works for some time without registration and does not receive a salary. Experience doesn't suit him.
4	Delay in reinstatement of an illegally dismissed employee who was reinstated by court decision.	The employee cannot begin to perform his legal duties and may end up.
5	Incorrect wording in the work book.	A negative characteristic does not give a person the opportunity to get a job.
6	person after his dismissal has been formalized.	A former employee cannot officially get another job.

Due to the employee's fault

The legislation does not provide for the possibility of forced absenteeism due to the fault of the employee. In this case, you can consider the situation of absenteeism, but for a good reason.

Logically, such reasons can only be moments of visiting a clinic:

entry in the medical outpatient card;

The fact of a person’s participation in a court hearing can also be strong evidence.

Forced absenteeism under the Labor Code in 2019

Determining the time period (term)

The period of forced absence is calculated quite clearly and logically. To do this, we take the calendar period between the date of dismissal of the employee and the date of the decision by the court or other body that protects the labor rights of citizens.

The person was fired on May 11, 2019. The court decision on his reinstatement was made on December 29, 2016. The period between these dates is forced absenteeism. In the process of calculating the period of forced absence, it is necessary to determine how many working days there were during this time.

So, from May 12 (the date of dismissal is a working day) to December 31, 2015, there are 186 working days.

The total period of temporary absence of an employee is: 186+298= 384 working days.

Payment

Calculation of average earnings

The accounting rules for determining the average income of an employee per day are enshrined in Art. 139 of the Labor Code and the Russian Federation and the norms of the Decree of the Government of the Russian Federation dated No. 922 of December 24, 2007.

It is necessary to take into account the following types of income of a person:

bid;
bonus;
surcharges.

The calculation does not include income from benefits and pension payments.

To determine the amount, the person’s entire official earnings for the year before dismissal are taken.

Penalty for forced absence due to the employer’s fault

What to do if the employer did not pay wages? Of course, payment for time absent due to the fault of management is possible.

There are several ways to recover wages through the court:

preparation and submission of an application for the purpose of issuing a court order;
filing a claim in court.

The law allows you to apply both to the court at the location of the enterprise and at the place of residence of the applicant.

After considering the case, the court issues an order or makes a decision stating the need for clear and full compensation of the person’s wages for the entire period.

The right to wages is inalienable.

Nuances

Is vacation accrued for missed days?

Yes, when the court makes a decision to confirm the fact of absence from work for a good reason, it will be considered that the person worked at the enterprise without interruption, and therefore has the right to legal.

Does this period count toward the length of service?

The VP period is included in a person’s total work experience.

Dismissal of a pregnant woman

Termination of an employment contract with a pregnant woman is not allowed, regardless of the circumstances and possible reasons for such dismissal (Article 261 of the Labor Code of the Russian Federation). Read more in the article.

Arbitrage practice

Litigation in the field of labor relations may arise regarding:

illegal application of labor law norms;
non-compliance with the norms of the collective agreement at the enterprise;
non-compliance with the terms of the contract.

Payment and personal income tax by court decision

Absenteeism time is paid in full.

Moral injury

The issue of payment of material damage caused to an employee by illegal dismissal is regulated in Art. 237 Labor Code of the Russian Federation.

It states that the amount of damage is determined by the agreement between the employer and the reinstated employee. The rule of law states that when deciding a matter in court, the amount of damage is determined by the judge.

Paragraph 63 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 emphasizes that in the Labor Code of the Russian Federation there are no restrictions on the amount of damages paid to an employee.

The presence of Articles 21 and 237 in the Labor Code allows the courts of the Russian Federation to satisfy claims of former employees of firms and enterprises against their employers for compensation for moral damage.

The court considers a specific situation individually and, based on the information received, analyzes the situation and determines the amount of damages to be paid.

What is forced absenteeism? There is no definition of such a term in the Labor Code of the Russian Federation. In practice, the question of whether absenteeism was not the fault of the employee is decided by the court or the labor inspectorate. As a rule, such absence from work is associated with a violation of the Labor Code of the Russian Federation by the employer (as stated in the Resolution of the Plenum of the Armed Forces of the Russian Federation “On the application of the Labor Code of the Russian Federation by courts” dated March 17, 2004 No. 2). If an employee cannot work due to the fault of the employer, then such absence is considered forced.

The following circumstances fall under these criteria:

dismissal of an employee without good reason;

dismissal of an employee from a position without explanation without reasons

Art. 391 of the Labor Code of the Russian Federation states that an employee whose rights have been violated may apply to the court for restoration of justice. The application period is no more than three months from the date of violation. If, by a court decision, it is established that the absence from work was due to the fault of the employer, the dismissed employee has every right to demand reinstatement at work, as well as to recover wages and compensation for moral damage from the employer.

How are calculations and payments made to an employee?

If it turns out that the truth is on the employee’s side, the court will make a decision to cancel the dismissal order and oblige the employer to make all necessary payments in favor of the citizen and reinstate him at work. According to Art. 234 of the Labor Code of the Russian Federation, payment for forced absence in case of illegal dismissal is made based on the employee’s average earnings for the twelve calendar months preceding the absence from work. The procedure for calculating the average salary is specified in Art. 139 Labor Code of the Russian Federation. Money is paid for the entire period of absence from work. Payment for forced absence due to the fault of the employer after a court decision must be made as soon as possible.

According to Art. 237 of the Labor Code of the Russian Federation, an employee may demand compensation for moral damage from the employer. If he does not mind, payment is made by agreement of the parties. In case of refusal, the employee may apply to the court with a corresponding claim.

Is the length of service included in this period?

After the employee is reinstated at work, the time of forced absence is included in the length of service as if he worked as usual. In the future, this time will be taken into account when:

calculation of the main leave;

calculation of bonuses related to length of service;

for other calculations.

Violation of the Labor Code of the Russian Federation by an employer when dismissing an employee can lead to his forced absence from the workplace. The result will be litigation and financial troubles.

Express your opinion about the article or ask the experts a question to get an answer

To resolve certain issues, judicial authorities often need information regarding average earnings during forced absence due to the fault of the employer.

The technology and rules for calculating this value are reflected in the Labor Code of the Russian Federation.

Represents the period of time during which an employed person citizen was absent from work for reasons beyond his control.

This kind of need arises at the initiative of the employer.

Most often this due to the following circumstances:

unjustified dismissal (from a legal point of view);
untimely issuance of an employee’s work book by the organization;
retroactive execution of an employment agreement;
presence of errors in the work book;
illegal transfer to a lesser position.

Current Legislation There is no provision for this type of leave at the employee’s initiative..

It should also be noted that it does not clearly define the concept of time off.

At the same time, thinking logically, we can come to the conclusion that in this case the employee’s forced absence from the workplace through his own fault may be due to the need to visit a medical facility.

To prove a good reason why this act was committed, the citizen must provide the employer with a sick leave or outpatient card with the corresponding entry. An equally significant reason for absenteeism is participation in a court hearing.

How to calculate?

Before moving on to determining the amount of compensation that the company's management will have to pay to an employee during forced absence, it is necessary to determine its duration.

To do this, you need to know the exact date of the first day of absenteeism and the day on which the judicial authorities made a decision on this issue.

The average earnings payable for the period of forced absence from work are in this case calculated in a standard way.

The billing period is the last 12 calendar months. Payment is subject to working days (or hours), not calendar days.

The first step in the calculation is to calculate the employee's total income for the year. After this, the amount he receives on average for each individual working day is calculated.

The resulting average daily earnings based on the last year are multiplied by the number of days, which is considered forced absenteeism. The final amount will be the compensation due for payment.

When calculating employee income The following types of payments are taken into account:

salary;
bonuses;
various additional payments and allowances.

Not taken into account:

sick leave;
vacation pay;
maternity leave;
travel allowances and other payments based on average earnings.

Calculation of daily average earnings is carried out taking into account the number of working days worked in a year.

Formulas:

Average daily earnings = Earnings per year / Number of working days worked per year.

Compensation = Average daily earnings * Working days of forced absence.

Example

Initial data:

The employee was fired illegally on January 30, 2018. In order to protect his rights, the employee filed a claim in court for reinstatement and payment of average earnings for the period of forced absence.

The court decided to reinstate the employee from May 14, 2018, and to pay the average salary for the days of forced absence from work.

The employee works a 5-day work week with a salary of 30,000; in September he received 10,000 and vacation pay, which is not taken into account.

Average earnings must be calculated for the period from the beginning of January to the end of December 2017.

In September 2017, he was on vacation for 21 days and worked the rest of the time.

The period of forced absence is from January 31 to May 13, 2018 inclusive = 66 working days.

Number of working days in 2017 = 248.

Since the employee was on vacation, he worked = 248 – 20 = 228 working days in the billing period.

Average daily earnings = (30000 * 11 + 10000) / 228 = 1491.23.

Compensation for forced absence = 1491.23 * 66 = 98,421.18.

The deadline for payment of this amount is on the day the dismissal order, declared illegal, is cancelled.

Personal income tax must be withheld from the average salary. This general rule applies unless the court rules otherwise.

The procedure for recovery from the employer

In a situation in which a citizen has been suspended from performing his official duties due to the fault of the company’s management, he can appeal to higher authorities to protect his rights.

In this case, the most going to court is considered effective. Payment of appropriate compensation is carried out on the basis of a decision made by a government agency.

To contact the specified authority, an employee whose rights have been violated must prepare a special statement of claim.

An important point is the correctness of its design.

Subsequently, a court hearing is scheduled, following which a document is issued that serves as the basis for collecting average earnings from the employer - an order.

This is how an employee can hold the employer financially liable for violating worker rights.

How to file a claim with the courts?

A citizen can go to court both to receive compensation for removal from work for unjustified reasons, and to recover compensation for moral damage.

To do this, he must draw up a special statement of claim.

In the document the following data should be reflected:

full name of the judicial authority;
Full name of the plaintiff, actual address of his residence;
information about the employer - address of the company, full name of the manager, indication of the form of labor activity;
document's name;
text outlining the essence of the problem:

— date of hiring;

— the position for which the employee was assigned;

— indication of the moment of absence of violation during the performance of official duties;

- the reason for forced absence with a description of the details. For example, if a citizen was unreasonably dismissed, the date of this event and the rationale for his opinion should be indicated - why he believes that the dismissal was unlawful;

reference to - in accordance with it, the employer’s obligation to pay compensation for illegal dismissal is determined;
assessment of moral damage;
the plaintiff’s requests for the recovery of average earnings, for the issuance of the necessary documentation;
list of attachments - employment contract, various certificates and orders that act as confirmation of the information presented;
applicant's signature, transcript;
document submission date.

Sample certificate of average salary for the court

Average earnings are usually calculated by the court itself. based on the person's income data provided for the last 12 months.

A citizen must obtain this certificate at his place of work.

To confirm the level of income on the basis of which the amount of compensation for absenteeism is determined, a certificate of the employee’s average earnings is submitted to the court.

An employee may not be able to work through anything other than his own fault. Employers often become the reason for absenteeism of their subordinates. For forced absence due to the fault of the employer, the employee is paid compensation. To prevent the employee from filing a claim, you must pay for the time off work. How is payment made and what formula is needed to calculate the amount of compensation?

Reasons for forced absence

If an employee is unable to perform official duties due to the fault of the director or owner of the company, then absenteeism is considered forced.

Absenteeism due to the fault of the entrepreneur is:

Dismissal of an employee without any valid reason.
Removal of a specialist from his duties without reason.
Issuance of a work book after dismissal not on time.

We calculate payments

To calculate the amount of compensation, the employee’s salary for the 12 months preceding the illegal dismissal is taken into account.

This takes into account:

bonus payments;
allowances;
insurance payments;
payment at an increased rate, etc.

Payments that are not related to wages are not taken into account:

assistance to the employee by the trade union;
refund for food;
compensation for travel expenses to the place of duty;
payment for retraining or additional training.

If an employee has worked for the company for less than 1 year, the salary is calculated based on the average daily earnings. To do this, the number of days worked is divided by the salary received for 12 months, minus all that do not relate to wages. Only workdays at a given enterprise are taken into account in the calculation; previous places of work and payments do not affect the average salary per day.

If during the time when the employee was illegally removed from his workplace, the company’s rate increased, then this coefficient is also taken into account in the calculation. In any calculation, the payment amount should not be lower than the monthly average salary in the company. Detailed calculations are regulated by Government Decree No. 922 dated December 24, 2007.

When calculating, only workdays at a given enterprise are taken into account; previous places of work and payments do not affect the average salary per day.

If an employee was dismissed with severance pay, then in calculations this amount is included in the payment. At the same time, other payments that were received by an illegally dismissed employee do not relieve the entrepreneur of responsibility and are not a reason for refusing to pay for absenteeism.

Such payments include:

unemployment insurance benefits;
payments from other places of work;
payments of interest from transactions under contracts;
on sick leave.

The payment rules are simple: if you fired an employee without reason, pay and compensate for the time he lost. Moreover, by a court decision, an employee can claim not only payment in the amount of the average salary, but also compensation for moral damage. The amount of compensation for moral damage will be determined by the court in each specific case. Of course, the employee will have to prove that the unlawful dismissal caused him moral harm.

Calculating walking time

If an employee was illegally dismissed, the employer must correctly calculate not only the average monthly or daily earnings of the subordinate, but also the time of forced absence.

When calculating time, the date taken is not from the date of the dismissal order, but the next one after the dismissal. And if the employee took a vacation and was fired after it, then the day before the order. So, if an employee was fired, but he foresaw the trouble and took a vacation, then the first day of forced dismissal is considered the last day of vacation.

When calculating time, the date taken is not from the date of the dismissal order, but the next one after the dismissal.

Violations are not always associated with dismissal. So, if according to Art. 62 of the Labor Code of the Russian Federation, the work book was not issued on the day of dismissal, and the employee wanted to get a new job and was unable to, then he loses profit and will have to pay for these days. Moreover, the lost profit will be calculated based on the wages that the employee did not receive in the new place.

If, upon dismissal, an incorrect entry was made in the work book and the former employee lost a profitable position because of this, then the entrepreneur will have to pay the lost profit. Of course, in court, the former employee must provide evidence that he was not hired for a new position precisely because of this record.

Most often in judicial practice, forced absenteeism occurs due to the reason or care of a minor child. If you do not want to get into an unpleasant situation, before dismissing an employee, consult with specialists to determine how legal it will be.

Responsibility for late compensation

If the employer does not pay the former employee compensation ordered by the court, then the dismissed person can count on compensation in the amount of 1/300 of the refinancing rate of the Central Bank of the Russian Federation for each number of delays (from January 1, 2016, the rate is 11% per annum). This is regulated by the instruction of the Bank of Russia 12/11/2015 2873-у. Plus you will have to pay moral compensation and legal costs, which is at least 30,000 rubles.

Compensation and taxes

The Russian Ministry of Finance published a letter dated July 24, 2014 N 03-04-05/36473, which states that any amount received during forced absence is subject to tax.

When filling out personal income tax declarations, all income of the payer is taken into account. Therefore, according to Art. 210 of the Tax Code of the Russian Federation, payments after a labor dispute regarding forced absence are also subject to taxes.

A complete list of income that is not subject to taxation is established by Art. 217 Tax Code of the Russian Federation. But in judicial practice there were cases when the average monthly salary paid due to forced absence was attributed to the employee’s compensation. If the payment is recognized by the court as compensation, then in accordance with paragraph 3 of Art. 217 of the Tax Code of the Russian Federation it will not be subject to personal income tax. The same applies to compensation from a former employer for moral damage, which has been proven in court.

Compensation to an employee for forced absence due to the fault of the employer is not subject to personal income tax.

Insurance payments to the Pension Fund during the absence of an employee who was reinstated by a court decision must be made in full by the entrepreneur.

Let's look at examples

To make it easier for you to understand, we will provide a sample calculation for an employee in case of forced absence.

So, Sidorov V.V. was fired illegally on June 1, 2010. He went to court and was reinstated on August 2, 2010.

Let's start the calculation:

Monthly payment from Sidorov V.V. before his illegal dismissal was 10,000 rubles. The period of forced absence is 2 months, or 42 working days.

To calculate the average monthly salary, it is necessary to take data for the last 12 months before dismissal. We calculate the days for this period if the employee worked it completely: from June to December 2009 (149 working days) and from January to May 2010 (125 working days).

To calculate the average monthly salary, it is necessary to take data for the last 12 months before dismissal.

But it is known that from June 1, in the place occupied by V.V. Sidorov, the salary was increased to 14,400 rubles.

The increase coefficient is calculated using the formula: new rate / old rate. In our case: 14400 / 10,000 = 1.44.

Now we calculate how much an employee should receive during forced absence using the formula: average wage per day × rate increase factor × working days.

In our case: 437 rubles 96 kopecks × 1.44 × 42 days = 26,487 rubles 82 kopecks. The illegally dismissed employee should receive this amount.

But suppose the court awarded compensation for moral damage in the amount of 12,000 rubles, as well as legal costs (22,000 rubles). As a result, the reinstated employee will receive: 26,487 rubles 82 kopecks + 22,000 rubles + 12,000 rubles = 60,487 rubles 82 kopecks.

There is no need to take the matter to court. If you decide to fire an employee, but have doubts about the legality, you should contact a lawyer. If you make a mistake, you will have to pay the former employee a considerable amount and reinstate him in his job. Legal fees will also be paid out of pocket. If an unpleasant situation does arise, we recommend that you settle accounts with the employee without waiting for the court decision to come into force.