Question: A staff member does not appear at work for several weeks, does not answer the phone. I would like to formalize our "farewell". How to do it properly?
Answer: Practice shows that most employers prefer to part with such employees in two ways: a) qualifying their absence from work as absence from work or b) recognizing the employee as missing.
Despite the seeming simplicity, dismissing such a employee can be an extremely time-consuming process.
The general rule is that the absence is:
- Absence from work without a valid excuse (i.e. absence from work all day or shift, regardless of duration);
- the employee's absence from the workplace for more than four hours in a row during the working day without a valid reason.
The burden of proof that the cause is unreasonable lies with the employer. Reasonable causes may include illness, force majeure, the need to care for seriously ill family members, and the performance of public duties or detention.
- It is recommended to collect evidence of daily absence of the employee (memos, absence reports, time sheets, extracts from the building's magnetic pass system, etc.) until the cause of absence is established.
- As soon as the fact of absence becomes known, the employer must request a written explanation from the employee. If no reply is received after 30 days, the employer is obliged to draw up a corresponding act.
- We recommend that you take additional steps: call all available phones, write to e-mail and social networks, find relatives, contact health care institutions and internal affairs authorities.
All these steps of the employer must be confirmed by documents: acts, memoranda, certificates, receipts, etc.
In practice, employers limit themselves by giving a written notice to the last known address of the employee's registration and do not wait for an answer (including a notice of non-delivery) to dismiss the employee. In the vast majority of cases, the court does not consider such actions to be exhaustive and reinstates the employee.
After drawing up the act of absence, the employer draws up an order of dismissal and sends it to the employee and makes the relevant entry in the employment record book. Regardless of the duration of the absence, the employment relationship with the employee is considered terminated as of the day specified in the order. The employer is obliged to send the employee a notice of the necessity to appear for the work record book or to give consent to its sending by mail.
We do not recommend sending the employee the work record book by mail without consent, as this may entail liability, up to and including criminal one.
A recognition as missing
This is an extremely expensive and inconvenient method, as it requires a court decision to declare such an employee missing. Obtaining such a decision may take from 2 to 6 months (+1 month for entry into force), before which an employee cannot be dismissed for an absence.
However, this method is the only possible way to do so, if the employer has failed to obtain reliable confirmation of the existence of a valid reason.
The problem with this method is that the employer may apply to the court only if there are no other interested parties. If the relatives have not yet filed an application, the employer will have to convince them to do so. As a rule, relatives are in collusion with the employee and prevent the employer from doing so.
Depending on the region, many courts refuse to initiate legal proceedings if there is information about the relatives of the employee.
If you have been able to obtain a valid court decision, the employer may dismiss the employee. In this case, the day of termination of the employment contract will be the day of entry into force of the court decision.Are there still questions? Do not hesitate to write!