Forced absenteeism due to the fault of the employer. Forced absenteeism. Sample certificate of average salary for the court

General rules for paying for downtime

A break (downtime) in work can happen for the following reasons:
- due to the fault of the organization;
- for reasons beyond the control of the organization and employee;
- due to the fault of the employee.

Break time for reasons independent from the employer and employee, is paid in the amount of at least 2/3 of the tariff rate or salary, calculated in proportion to the downtime.

Downtime by employee's fault not paid at all.

Simple by employer's fault paid based on average earnings. In this case, at least 2/3 of the average earnings accrued during forced rest are paid. To do this, the beginning and end of the downtime must be recorded. The manager must issue an order on the duration of the downtime and its payment.

If the downtime is prolonged, there is no need to recalculate the amount of average earnings every month.

Payments to employees should be made within the deadlines established by the organization for issuing wages.

As of: 11/11/2004
Magazine: Personnel Directory
Year: 2005
Author: Gavrilina Alla Konstantinovna
Topic: Labor disputes, Employer liability, At the initiative of the employee, At the initiative of the employer, For other reasons, Registration of termination of an employment contract
Category: HR practice

Wrongful dismissal Dismissal in violation of procedure Execution of a court decision on reinstatement

Article 234 of the Labor Code of the Russian Federation imposes on the employer the obligation to compensate the employee for material damage caused as a result of the illegal deprivation of his opportunity to work. The legislator includes these cases:

– illegal dismissal of an employee or his transfer to another job;

– the employer’s refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee to his previous job;

– delay by the employer in issuing a work book to the employee, entering into the work book an incorrect or non-compliant wording of the reason for the employee’s dismissal;

– other cases provided for by federal laws and the collective agreement.

As a result of depriving an employee of the opportunity to work, he or she has forced absenteeism, which in some cases leads to the fact that the employee will not receive earnings (for example, in case of illegal dismissal), in others it can lead to this (for example, in the case of a delay in issuing a work book) .

The Labor Code of the Russian Federation does not explain the concept of forced absenteeism

The legislator says about forced absenteeism:

in Article 373 of the Labor Code of the Russian Federation - the state labor inspectorate, if the dismissal is declared illegal, issues a binding order to reinstate the employee at work with payment for forced absence;

Article 391 of the Labor Code of the Russian Federation states that the courts consider individual labor disputes based on workers’ applications for payment during forced absence.

The court decides to pay the employee the average salary for the period of forced absence if the incorrect formulation of the reason for dismissal in the work book prevented him from applying for another job.

in Article 394 of the Labor Code of the Russian Federation - the body considering an individual labor dispute makes a decision on paying the employee average earnings for the period of forced absence.

Thus, at present, the court and the state labor inspectorate have the right to establish that there was forced absenteeism.

Wrongful dismissal

Wrongful dismissal of an employee is one of the cases of forced absenteeism.

In what cases can the dismissal of an employee be considered illegal?

The illegal dismissal of an employee is evidenced by:

– violation by the employer of the dismissal procedure (for example, another job was not offered upon dismissal on the basis of paragraph 7 of Article 77 of the Labor Code of the Russian Federation, paragraph 11 of Article 77 of the Labor Code of the Russian Federation, paragraph 2 of Article 81 of the Labor Code of the Russian Federation, subparagraphs “a” and “ b” clause 3 of Article 81 of the Labor Code of the Russian Federation); there was no warning about the upcoming dismissal under clause 2 of Art. 81 Labor Code of the Russian Federation; dismissal of an employee who is a member of a trade union, according to clause 2, sub-clause. “b” clause 3, clause 5 art. 81 of the Labor Code of the Russian Federation was carried out without taking into account the motivated opinion of the elected trade union body of this organization, etc.);

– the employer does not have a legal basis for dismissal (for example, another employee is hired to replace an employee dismissed due to staff reduction);

– dismissal of an employee who cannot be dismissed on this basis (a single mother raising a child under the age of 14 is dismissed under clause 2 of Article 81 of the Labor Code of the Russian Federation);

– dismissal (issuance of a dismissal order) is carried out by a person who does not exercise the right to hire and fire employees, etc.

As a general rule, declaring a dismissal illegal entails the employee having forced absenteeism from the day following the day of dismissal.

In some cases, the dismissal of an employee for absenteeism is due to the fact that he refuses to perform the assigned work and does not go to work. If, during the consideration of the dispute, it is established that the employer committed a violation of labor legislation, expressed in the assignment of work not stipulated by the employment contract (for example, an offer to perform work of lower qualifications), then such transfer of the employee to another job is recognized as illegal, and refusal to perform it - quite justified. An employee’s absence from work for this reason is considered as forced absenteeism. In this case, the forced absence of an employee caused by an illegal transfer to another job precedes the forced absenteeism that arose for the employee in connection with unlawful dismissal. Recognition of the illegality of the dismissal and the previous transfer of the employee to another job indicates the emergence of the right to payment for the time of forced absence from the day the employee refused to perform the work that was assigned to him (illegal transfer).

If an employee refuses to perform work in the event of a danger to his life and health, with the exception of cases provided for by federal laws, the employer is obliged to provide the employee with another job while such danger is eliminated.
If it is impossible to provide the employee with another job for objective reasons, the employee’s downtime until the danger to his life and health is eliminated is paid by the employer in the amount of 2/3 of the average salary

The employer must create conditions for the employee when performing work duties that meet labor protection requirements. If labor safety requirements are violated, for example, ventilation or exhaust does not work, which creates a lot of gas pollution in the workplace, the employee has the right to refuse to perform work duties, since there is a danger to his life and health. When refusing to work, an employee often believes that he has had to take forced absenteeism. However in this case, it is not forced absenteeism, but simple related to the employee’s exercise of the right to self-defense (Articles 379, 220 of the Labor Code of the Russian Federation).

According to Part 7 of Art. 220 of the Labor Code of the Russian Federation, an employee’s refusal to perform work in the event of a danger to his life and health does not entail bringing him to disciplinary liability.

If an employee refuses to perform his job duties due to the fact that he is not provided with personal and collective protective equipment, he also has downtime, which is subject to payment by the employer.

Typical violations committed by employers include the dismissal of an employee at the initiative of the employer during the period of his temporary disability (in violation of Part 3 of Article 81 of the Labor Code of the Russian Federation). Reinstatement of an employee at work entails payment for the time of forced absence.

If an employee is fired at the initiative of the employer in violation of Part 3 of Art. 81 of the Labor Code of the Russian Federation, then from what day - illegal dismissal or the end of temporary incapacity for work - does forced absenteeism occur and how should it be paid?

It is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of the organization or termination of activities by the employer - an individual) during the period of his temporary incapacity for work and while on vacation.
Part 3 Art. 81 Labor Code of the Russian Federation

Since the employment relationship with the employee terminated due to the issuance of a dismissal order, forced absenteeism is considered to have arisen from the day following the day of dismissal.

However, when paying for forced absence in such a situation, the temporary disability benefits paid to the employee are counted.

In a number of cases, an employee’s forced absenteeism is due to his removal from work on grounds not provided for by current legislation (shortages discovered by the storekeeper; manufacturing of defective products; insufficient qualifications established by the certification commission, etc.).

Dismissal in violation of order

In practice, an employer, when dismissing an employee for absenteeism, which is expressed in a long absence from work without good reason, sometimes violates the dismissal procedure, which serves as the basis for reinstatement of the employee at work.

Should be considered:
if the court determines that the employee was absent from work for a good reason, then payment is due for the entire period of absence from work

For example, by order of March 30, an employee is dismissed due to prolonged absence from work in accordance with subparagraph. “a” clause 6 of Art. 81 Labor Code of the Russian Federation March 10. In this case, the employee is dismissed on a date that precedes the day the employer issues an order to terminate the employment contract with him. A court decision to reinstate an employee at work entails payment for the time of forced absence. In a number of cases, the reinstated employee mistakenly believes that, since his employment relationship was terminated on March 10, forced absenteeism takes place from March 11, and not from March 31 (from the day following the day the dismissal order was issued), and therefore from this time it is due for payment.

The solution to this issue was reflected in the explanation contained in paragraph 41 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, according to which, if, when resolving a dispute about the reinstatement of a person dismissed for absenteeism, and the recovery of the average earnings for the period of forced absence, it turns out that the absence from the workplace was caused by an unexcused reason, but the employer violated the dismissal procedure, then the court, when satisfying the stated requirements, must take into account that the average earnings of the reinstated employee in such cases may not be recovered from the first day of absence from work, and from the day the dismissal order is issued, since only from this time absenteeism is forced.

The employer is obliged to remove from work (not allow to work) the employee in the cases provided for in Art. 76 of the Labor Code of the Russian Federation, and other cases provided for by federal laws and other regulatory legal acts.
Article 76 of the Labor Code of the Russian Federation

If the employer believes that the employee should be suspended
from work, he must have specific facts confirming his right - a medical report on identified contraindications for the employee to perform work stipulated by the employment contract, indicate the lack of training and testing of knowledge and skills in the field of labor protection. If it turns out that the employer cannot confirm that he has the grounds for dismissal to which he refers, then the dismissal will be declared unlawful. And failure by an employee to perform a labor function will be considered as forced absenteeism.

The head of the workshop, Mikhailov, did not allow 4th grade milling operator Semin to work due to his appearance in the workshop in the morning in a state of alcoholic intoxication. The head of the workshop drew up a report indicating the facts confirming Semin’s state of intoxication - unclear speech, unsteady gait, the smell of alcohol, inappropriate behavior. The act was signed by two workshop workers (repairman Nikitin and electrician Galkin) at the end of the working day. When the question arose about taking disciplinary action against Semin, it turned out that Nikitin and Galkin saw Semin not starting work and leaving the workshop in the morning. They did not come close to him that day, since each of them was already at work, so they could not say specifically about his condition. However, they confirmed that they had repeatedly seen Semin in an “elated state” in the previous days. Since Semin’s report of appearing at work while intoxicated was not properly executed, the actions of the shop manager cannot be considered lawful, and Semin’s removal cannot be considered legal. Thus, the day an employee is unlawfully removed from work is a day of forced absenteeism for him.

When formalizing the dismissal of an employee, the employer also sometimes makes mistakes; in particular, the dismissal order indicates the incorrect wording of its reason.

For example, the content of the order indicates that the employee is being dismissed by way of transfer at his request to work for another employer. This basis for dismissal is enshrined in paragraph 5 of Art. 77 Labor Code of the Russian Federation. However, in the dismissal order and when registering the employee’s dismissal in connection with the termination of the employment contract, the work record book indicates that he was dismissed under clause 5 of Art. 81 of the Labor Code of the Russian Federation (repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction).

Another example: in reality, an employee is dismissed in accordance with subclause. “a” clause 3 art. 81 of the Labor Code of the Russian Federation (inconsistency of the employee with the position held due to a state of health confirmed by a medical report), and in the dismissal order and work book, subparagraph is indicated. “b” clause 3 art. 81 of the Labor Code of the Russian Federation (inconsistency of an employee with the position held due to insufficient qualifications confirmed by certification results).

When an employee goes to court and the court recognizes the wording of the reason for dismissal as incorrect or not in accordance with the law, the court changes it and indicates in the decision the reason and basis for dismissal in strict accordance with the wording of the Labor Code of the Russian Federation.

In these cases, the employee may experience forced absenteeism if the incorrect formulation of the reason for dismissal prevented him from taking another job. The responsibility to provide evidence that the incorrect wording prevented employment lies with the employee.

Execution of a court decision on reinstatement at work

Immediate execution of a court decision on reinstatement means that the day after the decision is made, before it enters into legal force, the employer reinstates the employee at work

A court decision to reinstate an employee who was illegally dismissed or illegally transferred to another job is subject to immediate execution (Article 396 of the Labor Code of the Russian Federation).

If the employer does not agree with the court decision on the reinstatement of the employee and tries to appeal it, this is not a reason for non-execution of the court decision on the reinstatement of the employee.

It should be considered as a failure to comply with the requirement for immediate reinstatement of an employee not only the fact that the employer does not issue an order for his reinstatement at work, but also the issuance of an order for reinstatement in another position or profession, as well as the situation when an order for reinstatement is issued, but the employee is not actually allowed to work. In the latter case, the employer often justifies his behavior by the fact that the position he previously held was excluded from the staffing table, a significant time passed after the dismissal before the employee was reinstated, and therefore he needs to undergo a medical examination or pass a safety exam, etc. .

Meanwhile, the legislator’s demand for immediate execution of a court decision is expressed in categorical form and is not limited by any conditions.

When a court decision is made to reinstate the employee, the employee is issued a writ of execution.

The writ of execution on the reinstatement of an illegally dismissed or transferred employee is executed immediately. Federal Law dated July 21, 1997 No. 119-FZ “On Enforcement Proceedings” (hereinafter referred to as the Law on Enforcement Proceedings) stipulates that the execution of a writ of execution is considered completed from the moment the said employee is actually admitted to perform his previous duties, following the issuance by the employer of an order to cancel the illegal dismissal orders.

What consequences may occur for the employer if the writ of execution on reinstatement of the employee at work is not fulfilled?

Due to the fact that not in all cases the employer takes measures aimed at executing the writ of execution, this law defines the consequences of failure to comply with the document on reinstatement at work.

So, according to Art. 74 of the Law on Enforcement Proceedings, in the event of failure by the employer to comply with the writ of execution on the reinstatement of an illegally dismissed or transferred employee, the bailiff, in addition to issuing a decision to impose a fine on the employer, applies to the court with an application approved by the senior bailiff for a ruling on payment the employee's average earnings during forced absence or the difference in earnings for the entire period from the date of the decision to reinstate the employee to the day of execution of the writ of execution.

What is forced absenteeism? What are the rules for calculating average earnings during forced absence? Is it necessary to withhold personal income tax from these payments and accrue them? How to reflect the salary during forced absence in accounting?

What is forced absenteeism?

Forced absenteeism is the time during which an employee, through the fault of the employer, was unable to perform his job duties. This situation may arise in the following cases:

• if the employee was fired illegally;
• if the organization did not promptly issue a work book to the dismissed employee.

For your information

If the employer did not issue the employee a work book on the day of dismissal and this prevented him from getting a new job, the time from the moment of dismissal to the day the work book was actually issued is considered forced absenteeism.

The employer's obligation to compensate the employee for material damage caused as a result of illegal deprivation of his opportunity to work arises in accordance with Art. 234 Labor Code of the Russian Federation.

note

If the dismissal of an employee is declared illegal, the body considering the individual labor dispute makes a decision to pay the employee average earnings for the entire period of forced absence (Article 394 of the Labor Code of the Russian Federation).

In accordance with Art. 395 of the Labor Code of the Russian Federation, the employee’s monetary claims, which were recognized as justified by the body considering an individual labor dispute, are satisfied in full.

Actions of the employer after the dismissal of the employee is declared illegal.

Article 396 of the Labor Code of the Russian Federation establishes a requirement for the immediate execution of a court decision to reinstate an illegally dismissed employee.

Based on the court decision, the employer must:

• issue an order to reinstate the employee at work with the mandatory cancellation of the dismissal order;
• make an entry in the work book declaring the previous dismissal entry invalid;
• issue an order indicating for what period and what payments need to be made (for accounting, it will be the basis for calculating and paying compensation for the period of forced absence);
• pay the average earnings for the period of forced absence: a pre-calculated amount for the court that is not disputed by the company, if it is indicated in the decision, or an amount calculated after the order is issued;
• pay monetary compensation for moral damage if it is awarded by the court;
• take into account the time of forced absenteeism in the employee’s work experience (Article 121 of the Labor Code of the Russian Federation).

It is important to remember that the requirement for reinstatement at work is considered fulfilled from the moment when two actions are carried out: the returning employee has begun to perform his previous job duties and the order for his dismissal is canceled (decrees of the Constitutional Court of the Russian Federation dated July 15, 2008 No. 421-О-О, dated November 15 .2007 No. 795-О-О).

note

The employer’s obligation to pay wages during forced absence occurs simultaneously with the cancellation of the dismissal order and the reinstatement of the employee in his previous position, being an integral part of the process of reinstatement at work (Determination of the Armed Forces of the Russian Federation dated April 23, 2010 No. 5-B09-159).

It should be noted that according to Part 4 of Art. 394 of the Labor Code of the Russian Federation, if the dismissal is declared illegal, the court, at the request of the employee, may decide to change the wording of the grounds for dismissal to at will. By virtue of Part 7 of the same article, if, in the cases provided for by this article, after declaring the dismissal illegal, the court makes a decision not to reinstate the employee, but to change the wording of the grounds for dismissal, the date of dismissal must be changed to the date the court makes the decision. If, by the time the said decision is made, the employee, after a contested dismissal, has entered into an employment relationship with another employer, the date of dismissal must be changed to the date preceding the day of commencement of work for this employer.

If the employer intends to challenge the court's decision, the preparation of the relevant documents and the direct application to the court should be carried out after the employee is reinstated at work.

What are the rules for calculating average earnings during forced absence?

The provisions of Art. 234 of the Labor Code of the Russian Federation stipulates that if a court or a labor dispute commission recognizes the dismissal of an employee as illegal, he must be paid the average salary for the entire period of forced absence.

According to the legal position set out in paragraph 62 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2, the average earnings to pay for the time of forced absence are determined in the manner prescribed by Art. 139 Labor Code of the Russian Federation. Since the Labor Code establishes a uniform procedure for calculating the average salary for all cases of determining its size, the same rules should be used to determine the average earnings when collecting sums of money:

• during forced absenteeism caused by a delay in issuing a work book to a dismissed employee (Article 234 of the Labor Code of the Russian Federation);
• in case of forced absenteeism due to incorrect formulation of the reason for dismissal (Part 8 of Article 394 of the Labor Code of the Russian Federation).

Features of the procedure for calculating average wages established by Art. 139 of the Labor Code of the Russian Federation, are determined by the Government of the Russian Federation taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations. This procedure is defined in the Decree of the Government of the Russian Federation of December 24, 2007 No. 922 “On the peculiarities of the procedure for calculating the average salary” (hereinafter referred to as the Regulation). According to this resolution, the average employee’s earnings are determined by multiplying the average daily earnings by the number of days (calendar, working) in the period subject to payment. Average daily earnings, except in cases of determining average earnings for vacation pay and payment of compensation for unused vacations, are calculated by dividing the amount of wages actually accrued for days worked in the billing period, including bonuses and remunerations taken into account in accordance with clause 15 of the Regulations, by the number of days actually worked during this period (clause 9 of the Regulations).

In practice, legal proceedings on issues of reinstatement and recovery of wages for forced absence may drag on, and during this time the organization most often increases wages.

In this regard, clause 17 of the Regulations provides for a special calculation procedure. The average earnings determined to pay for forced absence time are increased by a special coefficient.

So, if during forced absence in an organization (branch, structural unit) tariff rates, salaries (official salaries), and monetary remuneration increased, the coefficient is determined by the following formula:

At the same time, in relation to payments established in a fixed amount and in an absolute amount, the rules of clause 16 of the Regulations apply: when average earnings increase, payments taken into account when determining average earnings, established in absolute amounts, do not increase.

note

When recovering average earnings in favor of an employee reinstated in his previous job, the severance pay paid to him is subject to offset (Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2, Appeal ruling of the Sverdlovsk Regional Court dated April 1, 2015 No. 33-4234/2015).

Payments for forced absence and “salary” taxes.

Personal income tax.

According to the general rule established in paragraph 1 of Art. 210 of the Tax Code of the Russian Federation, when determining the tax base for personal income tax, all income of the taxpayer that he received both in cash and in kind or the right to dispose of which he acquired is taken into account.

According to the official position of the Ministry of Finance, the amount of average earnings due to an employee during forced absence is subject to personal income tax in accordance with the generally established procedure. This is due to the fact that the list of income exempt from taxation is given in Art. 217 of the Tax Code of the Russian Federation, and income in the form of average earnings during forced absence is not named in the specified list (letters of the Ministry of Finance of the Russian Federation dated July 24, 2014 No. 03 04 05/36473, dated April 13, 2012 No. 03 04 05/3 502, Federal Tax Service of the Russian Federation dated 04.04 .2006 No. 04 1 04/190). They support controllers and arbitrators (decrees of the FAS Moscow Region dated 04/26/2007, 05/04/2007 No. KA-A40/3164 07 in case No. A40-70555/06 4 304, FAS SZO dated 07/06/2006 No. A56-53997/2005).

There is another point of view. The fact is that in Art. 394 of the Labor Code of the Russian Federation, payment for forced absence made to an employee in the form of average earnings is defined as compensation. Taking into account this norm, the Department of Tax Administration for Moscow, in Letter No. 28-11/12809 dated February 27, 2004, concluded that compensation in the form of payment to an employee of average earnings during forced absence refers to compensation established by the legislation of the Russian Federation and is subject to clause 3 Art. 217 Tax Code of the Russian Federation. The FAS MO came to the same conclusion in Resolution No. KA-A40/11341 08 dated December 8, 2008 in case No. A40-6313/08 33 28.

However, in practice it is better to be guided by later explanations of officials.

The situation is different in a situation where, along with the payment of average earnings for the period of forced absence, the employee receives compensation for moral damage awarded by the court. The amount of compensation for moral damage caused to an individual paid by court decision is a compensation payment provided for in paragraph 3 of Art. 217 of the Tax Code of the Russian Federation, and, therefore, is not subject to taxation (Letter of the Federal Tax Service for Moscow dated March 17, 2011 No. 20-14/3/024651@).

For your information

If compensation for moral damage is not carried out on the basis of a court decision, these payments are not recognized as compensation payments falling under clause 3 of Art. 217 of the Tax Code of the Russian Federation, and are subject to personal income tax in the prescribed manner.

In what order is personal income tax withheld when paying average earnings during forced absence? According to para. 1 clause 4 art. 226 of the Tax Code of the Russian Federation, the tax agent withholds the amount of personal income tax directly from the taxpayer’s income upon actual payment. In practice, there are often situations when in the writ of execution the amount of payment by court decision is determined without taking into account the personal income tax subject to withholding. By virtue of clause 2 of Art. 13 of the Code of Civil Procedure of the Russian Federation, a court decision providing for the obligation of an organization to pay an individual a certain amount of money is subject to mandatory execution. In this case, the organization must pay the amount indicated in the writ of execution, without withholding personal income tax (Letter of the Federal Tax Service for Moscow dated October 7, 2009 No. 20-14/3/104564@). The Ministry of Finance in Letter dated April 7, 2014 No. 03 04 06 /15507 noted: the debtor organization has the opportunity to draw the court’s attention to the need to take into account the requirements of tax legislation when determining the amounts payable. If, when making a decision, the court does not separate the amounts payable to an individual and withholding from him, it is not possible to withhold personal income tax from payments made to the taxpayer by court decision. At the same time, the tax agent must withhold tax when making other payments to the taxpayer. In the absence of such payments before the end of the tax period, the tax agent in accordance with clause 5 of Art. 226 of the Tax Code of the Russian Federation is obliged to inform the taxpayer and the tax authority at the place of registration about the impossibility of withholding tax and its amount (Letter of the Ministry of Finance of the Russian Federation dated November 2, 2015 No. 03 04 05/62860).

How are tax deductions applied when calculating personal income tax on the amount of average earnings paid to an employee by a court decision in connection with his dismissal being declared illegal? These payments are not remuneration for the performance of job duties. The Ministry of Finance in Letter dated June 28, 2013 No. 03 04 05/24633 explained that when income is received in cash, the date of actual receipt of income is determined as the day the income is paid, including its transfer to the taxpayer’s bank accounts (clause 1, clause 1, art. 223 Tax Code of the Russian Federation). This means that deductions can only be provided from January 1 of the tax period in which payment for forced absence is made.

Insurance premiums.

For your information

When paying average earnings for the period of forced absence, the organization recognizes these expenses in the month the court decision entered into force (clause 16 of PBU 10/99).

Accounting records to reflect payments in connection with the reinstatement of an employee at work are made in the manner established by the Instructions for the application of the Chart of Accounts for accounting of financial and economic activities of organizations, approved by Order of the Ministry of Finance of the Russian Federation dated October 31, 2000 No. 94n.

Example.

An employee of the organization, fired in February, filed a lawsuit to declare his dismissal illegal. The court satisfied the plaintiff’s demands and ordered the organization to reinstate the illegally dismissed employee and pay him the amount of average earnings during forced absence in the amount of 110,000 rubles. Based on the received writ of execution, the organization reinstated the employee in his position in September and paid him the amount awarded by the court from the cash register.

As of the date of calculation of average earnings for the period of forced absence:

• the employee does not have the right to receive standard deductions for personal income tax;
• the amount of payments made by the organization in favor of the employee, calculated from the beginning of the current year on an accrual basis, does not exceed the limit established for the calculation of insurance premiums.

How to record payment for forced absence to an illegally dismissed employee who has been reinstated by a court decision?

In connection with the payment of average earnings to an employee during forced absence, the accountant must make the following entries:

	Debit	Credit	Amount, rub.
Average earnings calculated for the period of forced absence
Insurance premiums are calculated for the amount of average earnings (RUB 110,000 x 30.2%*)
The employee was paid from the cash register the amount of average earnings during forced absence
Personal income tax accrued from the amount of average earnings during forced absence is withheld (when paying the employee other income in cash, in particular, wages) (RUB 110,000 x 13%)**

* Rates of insurance contributions: in the Pension Fund of the Russian Federation - 22%, in the Social Insurance Fund - 2.9%, in the Federal Compulsory Medical Insurance Fund - 5.1%, for compulsory social insurance against industrial accidents and occupational diseases, taking into account the class of occupational risk, which includes economic activities of the organization - 0.2%.

** Provided that the withheld amount of personal income tax does not exceed 50% of the payment amount (clause 4 of article 226 of the Tax Code of the Russian Federation).

Summarize:

• the employer is obliged to pay wages for the period of forced absence simultaneously with the cancellation of the dismissal order and the reinstatement of the employee in his previous position;
• The average earnings to pay for the time of forced absence are determined in the manner prescribed by Art. 139 Labor Code of the Russian Federation. If during the period of forced absenteeism the organization increased salaries, the calculated average earnings are subject to indexation;
• according to the official position of the controllers, personal income tax is withheld from the amount of average earnings paid during forced absence;
• simultaneously with the calculation of compensation in the amount of average earnings for the period of forced absence on the date of restoration of the employee to his previous position, insurance premiums are calculated from this amount.

Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.”

Letter of the Ministry of Finance of the Russian Federation dated June 17, 2016 No. 02 07 05/35315 “On the period for calculating wages during forced absence and corresponding contributions to the Social Insurance Fund of the Russian Federation and the Pension Fund of the Russian Federation.”

Federal Law of July 24, 2009 No. 212 FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund.”

The question of what forced absenteeism is and how to formalize it is relevant both for employers or employees of the accounting and personnel departments, and for ordinary employees who may encounter this phenomenon. The Labor Code of the Russian Federation gives clear definitions to the concept of forced absenteeism and provides a strict procedure by which payment is made in these circumstances. It should be taken into account that in different situations, forced absenteeism has different legal regulations, depending on whether it occurred through the fault of the employee, the employer, or due to illegal dismissal.

What is forced absenteeism under the Labor Code of the Russian Federation - laws and legal regulation

The current Russian legislation itself does not contain a direct explanation of the term “forced absenteeism” in the Labor Code of the Russian Federation or other regulatory documents.

However, this term is widely used both in the Labor Code itself, which regulates most of the relationships between employees and employers, and in other regulatory documents and acts at the federal level.

Legal regulation of this issue is primarily ensured by the following provisions of the Labor Code of the Russian Federation:

• Art. 21 Labor Code of the Russian Federation. It contains a list of the basic rights of the employee, including the right to provide him with the opportunity to perform his job duties and demand compensation for certain violations of his own rights from the employer.
• Art. 81 Labor Code of the Russian Federation. This article examines the issues of dismissal of employees at the initiative of the employer and one of the reasons for such dismissal is absenteeism without a valid reason. Art. 121 Labor Code of the Russian Federation. This article is devoted to the procedure for calculating work experience, on the basis of which annual paid leave is calculated. And in particular, it also considers forced absenteeism due to illegal dismissal - these days are fully taken into account as working days when calculating the duration of an employee’s vacation.
• Art. 237 Labor Code of the Russian Federation. It provides for the right of an employee to demand compensation for moral damage, including for forced absences due to illegal dismissal or other circumstances caused by a violation of the rights due to the worker.
• Art. 373 Labor Code of the Russian Federation. This article establishes the employer’s obligation to take into account the opinion of the trade union organization when dismissing employees without their initiative. Also, the provisions of this article provide the state labor inspectorate with issuing mandatory instructions to the employer regarding the reinstatement of workers with payment for forced absence.
• Art. 391 Labor Code of the Russian Federation. Its principles regulate the procedure for considering individual labor disputes between employees and employers in court. In particular, it determines the possibility of considering workers’ claims regarding payment for forced absences.

The concept of forced absenteeism should not be confused with the concept of downtime. Despite the fact that simple and forced absenteeism according to the Labor Code of the Russian Federation can occur through the fault of the employer or without it, the procedure for their payment and consideration has different legal regulation and design.

Types of forced absences

Before considering the procedure for paying for forced absences, you should familiarize yourself with the main situations that may fall under this definition. As can be understood from the standards of current legislation, absenteeism means absence from the workplace for more than four hours in a row, and for absenteeism an employee may be subject to disciplinary action up to and including dismissal. In general, forced absenteeism can have various grounds and occur for various reasons:

Forced absenteeism in some situations may or may not be subject to payment, which should be taken into account by both employees and employers. At the same time, the employee has the right to apply for compensation for forced absence within a month from the moment of violation of his rights - suspension or dismissal, and he can extend this period only if there are good reasons.

How is forced absence paid?

Payment for forced absence is one of the main issues of interest to both employees and employers. Despite the fact that the phenomenon of forced absenteeism itself demonstrates the employee’s actual desire and intention to fulfill his work duties, he cannot receive payment for this time in every case. But current legislation regulates such situations as follows:

Payment for forced absenteeism in case of illegal dismissal or suspension is carried out for all days of absence of the employee from the day of dismissal until the day the court makes a decision. It should be noted that the employer is obliged to provide payment after the decision is made, without waiting for it to enter into force.

In the Labor Code of the Russian Federation, forced absenteeism due to the fault of the employer does not have a clear definition. Essentially, this is absenteeism that was not the fault of the employee. The employer is obliged to pay him for his material losses voluntarily or by court decision.

Possible reasons for absenteeism due to the fault of the employer

The reasons for forced absenteeism under the Labor Code of the Russian Federation may be:

What is truancy

According to the Labor Code of the Russian Federation, absenteeism is a violation of labor regulations due to an employee’s prolonged absence from the workplace without good reason. What types of absenteeism are there - you can find out in this

• dismissal of an employee if there were no legal grounds;
• to another unit in violation of the established procedure;
• illegal refusal of an employer to hire an individual, including untimely conclusion of an employment agreement;
• untimely return of the work book, as well as indicating the wrong reason for dismissal in the work book itself;
• untimely execution of a decision to reinstate an employee dismissed without legal grounds, etc.

In such situations, the employer is obliged to pay for forced absence or compensate for the impossibility of working (Article 234 of the Labor Code of the Russian Federation). This time is also counted towards continuous work experience and into the length of service on the basis of which vacation is calculated, as well as when calculating bonuses depending on length of service. By the way, you can find out how continuous work experience is considered in the article.

Calculation of the duration of absenteeism

When calculating the duration of such absenteeism in case of illegal dismissal, its first day is considered the next day after signing the order. In a situation where an employee was fired during vacation, the first day of forced absence will be considered the next day after the end of the vacation.

If an employee is due compensation due to failure to issue a work book or issuing it with an incorrect entry, then it is paid for the time when he could work.

Calculation of average earnings during forced absence

If during the proceedings it was proven that absenteeism was not the fault of the employee, then the employer is obliged to pay him compensation. It is calculated based on the employee's average earnings for the previous twelve months.

The calculation is made according to the algorithm in accordance with Article 139 of the Labor Code of the Russian Federation. It takes into account:

• bonuses;
• allowances;
• insurance compensation.

Note! If an employee dismissed in violation of current legislation received severance pay, then this amount will be included in the calculation. Payment of severance pay does not relieve the employer of the obligation to compensate the employee for forced absence.

All payments not related to wages are not included in the calculation. These include:

• financial assistance to the employee from the trade union;
• compensation for food and travel;
• funds intended to pay for training or advanced training, etc.

In cases where an employee has been working for less than twelve months, the calculation is based on average daily earnings. In this case, only working days at a given enterprise are taken into account. Income from other places of work for the previous twelve months is not included in the calculation.

Payment procedure

An employer may voluntarily pay an employee for forced absence. If he does not recognize the fact of its existence, then the employee has the right to file a claim in court no later than three months based on the fact of violation of his rights (Article 391 of the Labor Code of the Russian Federation). The period of trial will also be counted as forced absenteeism.

If the employer does not pay compensation within the deadlines set by the court, then the victim has the right to receive a penalty in the amount of 1/300 of the Central Bank rate for each day of delay.

Taxation of compensation for forced absence

According to Letter of the Ministry of Finance of the Russian Federation dated July 24, 2014 N 03-04-05/36473, payments for forced absence are subject to tax withholding, since they are not included in the list of Art. 210 Tax Code of the Russian Federation.

However, there are precedents in judicial practice when funds that are due to an employee for absenteeism due to the fault of the employer were designated as compensation. In this case, these funds will not be taxed. This also applies to compensation for moral damages that may be awarded by a court.

If the money is not subject to taxation, then the employer is obliged to notify the tax service of the impossibility of withholding personal income tax.

An example of calculating payment for forced absence due to the fault of the employer

The employee was dismissed in violation of labor laws on February 1, 2017. He went to court. According to the court decision, he was reinstated on March 15. The monthly salary at the time of the employee’s dismissal was 15,000 rubles.

Over the previous twelve months, the employee worked 252 working days. His average daily salary will be 15,000 * 12/252 = 714.29 rubles.

The duration of forced absence was 27 days. The payment will be 27 * 714.29 = 19,285.71 rubles. Let us remember that the court may also oblige the employer to pay moral damages and legal costs.

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