The summer vacation season is coming to an end. What to do with missing employees?

By Ivan Katyshev, Head of Legal Services

tspor.ru № 09

  • How to request an explanation from an employee whose whereabouts are unknown?
  • What disciplinary action can be taken against missing employees?
  • What methods can be used to return employees to their usual working rhythm?

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Ivan Katyshev
Head of Legal Services at Intercomp

An unpleasant consequence of the end of the summer vacation season for employers is the violation of work discipline by employees. Some arrive at work late, others remain in holiday mode and do not perform their work duties. In this article, you will find the most common violations and ways to deal with them.

How to contact missing holiday-makers?

If an employee does not come to work on his/her first day back after his/her vacation, the employer will have grounds for dismissal for absence from work without leave (Article 81(1(6)) Labor Code). The employee’s absence from work is, however, not sufficient to dismiss the employee. To dismiss the employee, it is necessary to follow disciplinary procedures and perform the following actions (Article 193 Labor Code):

—Drafting statements of absence from work;
—Requesting explanations from the employee;
—Preparing and signing a dismissal order;
—Recording the employee’s dismissal in his/her employment record book;
—Handing over the employment record book to the dismissed employee;
—Making the final settlement with the employee.

Explanations may be requested from employees by electronic means of communication such as, for example, WhatsApp, or by corporate email.

It is, as a rule, difficult to hand over to employees a request for explanations and report back to work notice. If the employee has not come back from vacation, it is possible that he/she has not yet returned home. This means that it is unlikely that any documents mailed by post will be served. In such case, the request may be sent by electronic means of communication (for example, through WhatsApp).

COURT PRACTICE:

An employee of the Department of Internal Affairs was dismissed for absence from work without leave as he failed to come to work at the end of his vacation. The employee challenged the dismissal on grounds that the employer did not follow the disciplinary procedure by failing to request written explanations of the employee’s misconduct. The court dismissed the lawsuit because the employer had sent a WhatsApp message to the employee requesting him to come to the office to submit explanations of his absence and stating that his vacation had ended. In addition, the employer had repeatedly sent letters to the employee with similar requests, as well as аrranged a visit to the plaintiff's place of residence to hand over the required notice (Khabarovsk Regional Appellate Court Ruling dated May 29, 2017 Case No. 33-4096/2017).

Explanation requests may be sent by corporate email when employees use it remotely (Moscow Savelovsk District Court Decision dated December 08, 2017 Case No. 2-6291/17). Courts allow sending notification to employees in various forms, but employers must be prepared to prove that the messages they sent were received by employees (for example, no non-delivery messages, etc.)

When absence from work is excusable

The reasons for not coming back to work after the end of vacation should be taken into account before initiating disciplinary actions against employees. Absence from work is the non-attendance of work by employees with no good reason regardless of the duration of absence, as well as the absence from work with no good reason for more than 4 consecutive hours (Article 81(1(6)) Labor Code). Employees may cite the absence of tickets for late return to work. Courts recognize the absence of tickets as a valid reason provided employees can prove the absence of tickets or if this fact is established upon verification of evidence (Supreme Court Ruling No. 69-В12-1 dated March 30, 2012). Courts also impose the burden of proof on employees and require providing evidence of the absence of tickets and of the impossibility of arranging any alternative way of traveling as well as evidence of the impossibility of purchasing tickets in advance. If such evidence is not available, dismissal is deemed valid and lawful.

COURT PRACTICE:

An employee challenged his dismissal for absence from work without leave. The absence from work was not denied, and the employee stated that his absence was with good reason. The employee was in Volgodonsk together with his family, and there were no bus tickets from Volgodonsk to Moscow for the required date. The court dismissed this argument by stating that the employee failed to provide evidence of the impossibility of traveling by another mode of transport to arrive by the work start date and failed to provide evidence of the impossibility of purchasing tickets in advance (Moscow City Appellate Court Ruling dated June 06, 2013 Case No. 11-15546).


Issue an order with a reminder to employees of the work schedule in place and a description of the consequences of work schedule violations.

Dismissal is a tough disciplinary action. If you do not intend terminating employment for absence from work, then draw up a warning or reprimand for late attendance. As a rule, any disciplinary action is indicated bonus policies as grounds for non-accrual of bonus or additional payments for vacation and sick leave (Moscow City Appellate Court Ruling dated November 02, 2017 Case No. 33-41558/2017). Financial measures have a direct effect on employees and ensure better discipline in the future.

If an employee cannot return from vacation, such employee can send to his/her employer a vacation extension request electronically (for example, by SMS). It is, however, not mandatory for the employer to accept such request. Courts recognize that an SMS is not sufficient evidence of vacation approval.

COURT DECISION EXTRACT:

“The employee indicates in her appeal that a vacation application was approved with subsequent dismissal. She substantiated her argument with an SMS sent by her employer worded as follows: “if you do not wish to continue work — your employment contract will be terminated within 2 weeks.” The court could not deem this argument as valid as the text of this message does not allow concluding that the vacation had been approved by the employer. Moreover, an SMS is in itself not sufficient evidence of vacation approval.” (St. Petersburg City Appellate Court Ruling dated March 21, 2017 Case No. 2-2986/2016)

Illness during vacation

If an employee falls ill during his/her vacation, the employee’s vacation can be extended or postponed to a period determined by the employer taking into account the employee’s wishes (Article 124 Labor Code). The inability to work does not automatically entail the extension of vacation as it is necessary for the employer and the employee to agree upon such extension. Practice also shows that if an employee calls his/her employer to notify his/her illness during vacation with a request for vacation extension, the vacation will be deemed extended if not expressly denied.

COURT PRACTICE:

An employee took her annual vacation from August 03, 2015 to September 15, 2015 inclusive. The employee received a sick leave note on September 14, 2015 and immediately called the secretary at her workplace to notify her employer of the receipt of this sick leave note and of the postponement of her remaining 2 days of leave. The secretary forwarded this information to the head of accounting, reporting and HR department. This is confirmed in a functional audit check report. The court ruled that the above actions performed by the employee were consistent with Article 124(1) of the Russian Labor Code (Kabardino-Balkarian Republic Appellate Court Ruling No. 33-137/2016 dated February 11, 2016).

Please note that phone calls can be taken by managers’ secretaries, and if managers do not reply or confirm the vacation extension, then the employee will be entitled not to come to work. Secretaries should therefore have clear instructions, for example, inform that the decision for extension will be issued by the manager later, and that the employee will be notified later.

Unwillingness to work after vacation

Employees come back to work in due time but often do not work properly after their vacation: they can arrive late and do their job poorly. In such case, make sure that the employment contract provisions on work schedule have been approved and request explanations of the non-fulfillment of work duties. If the issue of work quality is raised, prepare work assignments in writing with a detailed description of deadlines and work performance. Set achievable deadlines. Whether or not an assignment can be fulfilled is assessed in court usually through the testimony of former colleagues/witnesses.

COURT PRACTICE:

An order was issued by a general director to reprimand an employee’s improper performance of work duties. The employee challenged this reprimand. The employee submitted to the company head explanations for each assignment when he was unable to complete them by the set deadline. The employee was assigned tasks he had not performed previously, and it was not possible to fulfill them within the set deadlines. The court dismissed the lawsuit as the assignments given to the employee were within his work duties, and the employee’s colleagues testified that it was possible to complete them within the set deadlines (St. Petersburg City Court Ruling No. 33-13683/2014 dated September 09, 2014).


Important: Employers are entitled to dismiss employees for absence from work without leave if employees refuse to provide written explanations of the reasons for their absence as well as documents supporting these reasons (Article 193 Labor Code).

If HR officers see that staff stop observing their work schedule, it would not go amiss to issue a work schedule reminder with a description of the consequences arising from work schedule violation. This way, staff would be reminded to observe their work schedule without resorting to disciplinary actions.