Роль судебных решений в преодолении неопределенности нормативного регулирования увольнения за прогул

Abstract

On the basis of current legislation and judicial practice, the problems of regulatory regulation and the courts position on the issue of dismissal of an employee at the initiative of the employer under subparagraph “a” of paragraph 6 of part 1 of Chapter 81 of the Labor Code of the Russian Federation are considered. The study relevance was substantiated, its methodology was characterized (such research methods as comparative legal, formal legal, as well as analysis, synthesis, system method were used). The definition of absenteeism given in the Labor Code of the Russian Federation is considered, the main problems of qualification as absenteeism of the absence of an employee in the workplace are highlighted. The courts positions are analyzed on the issue of whether a break for meals and rest is included in the definition of absenteeism and whether this break interrupts the continuous absence of the employee from the workplace. It is substantiated that the current legislation does not contain an exhaustive list of reasons for determining the validity of an employee’s absence from the workplace. Based on the analysis of judicial practice, a number of reasons are identified that the courts recognize as valid, and the ambiguity of the legal positions of the courts on this issue is also shown. It is concluded that in conditions of legal uncertainty, it is the courts that become the subject that fills in the gaps in the legislation in relation to specific cases. The main results of the study can be applied in the future in law enforcement practice, as well as in the teaching of legal disciplines.