Military service in any structures that ensure the security of our country, the Russian Federation, and the protection of its interests, including those extending to all possible world states, involves a huge number of different responsibilities, the observance of which is necessary and mandatory. Of course, the abundance of such duties and their possible violations form many different crimes committed by people in military service. One of these crimes is the main issue on the topic under consideration - unauthorized abandonment of a unit or place of service, which will be discussed further.
Punishment for unauthorized leaving a unit or place of service.
Commentary on Article 337 of the Criminal Code of the Russian Federation
Commentary edited by Rarog A.I.
1. Unauthorized abandonment of a unit or place of service should be understood as the departure of a serviceman from this unit or place of service without the permission of the superior (commander) or other legal grounds. Absence lasting more than two days, but not more than ten days is a crime under Part 1 of Art. 337 CC.
2. Provided for in Part 1 of Art. 337 of the Criminal Code, failure to appear for service on time upon dismissal from a unit, upon assignment, transfer, from a business trip, vacation or medical institution implies that, in contrast to unauthorized abandonment of a unit or place of service, the serviceman left the place of service or unit on a lawful basis, and failure to return on time is not caused by any valid reasons.
3. The crime is considered completed from the moment the serviceman is absent without good reason from the unit or place of service for the period established in Part 1 of Art. 337 of the Criminal Code of the term.
4. The subjective side presupposes the presence of direct intent.
5. The subject of the crime is a special one - a military serviceman undergoing military service upon conscription.
6. The qualified crime is provided for in Part 2 of Art. 337 of the Criminal Code: commission of the same act by a serviceman serving a sentence in a disciplinary military unit.
7. The subject of this crime is a military serviceman serving a sentence in a disciplinary military unit.
8. Part 3 of Art. 337 provides for unauthorized abandonment of a unit or place of service, as well as failure to appear on time without good reason for service for a duration of more than ten days, but not more than one month.
9. Unlike Part 2 of Art. 337 of the Criminal Code in this composition increases the period of absence from the unit or place of service (from more than ten days to one month), and not only the military serviceman undergoing military service on conscription, but also serving under a contract, becomes the subject of the crime. Thus, criminal liability for the acts in question for a serviceman performing military service under a contract occurs in the absence of a unit or place of service for more than ten days, while for a serviceman undergoing military service on conscription, criminal liability is provided for in the absence of duty station or unit for more than two days (Part 1 of Article 337 of the Criminal Code), and in the absence of more than ten days it only intensifies (Part 3 of Article 337 of the Criminal Code).
10. Part 4 of Art. 337 of the Criminal Code establishes a more severe punishment for committing acts provided for in Part 3 of Art. 337 of the Criminal Code, lasting more than one month.
11. In the note to Art. 337 of the Criminal Code contains a provision that a serviceman who has committed the acts provided for in this article for the first time may be exempt from criminal liability if the unauthorized abandonment of the unit was a consequence of a combination of difficult circumstances.
12. A combination of difficult circumstances means the sudden death or serious illness of the parents and other close relatives of a serviceman, a natural disaster at their place of residence requiring the urgent arrival of a serviceman to provide the necessary assistance, serious conflicts in the family that threaten its disintegration, etc.
How to fire someone for absenteeism
If you don’t believe the employee’s excuses, you can fire him for absenteeism - according to paragraphs. a) clause 6, part 1, art. 81 of the Labor Code.
Absenteeism is not only when an employee overslept and was four hours late or did not show up at all. The Supreme Court also considers the following situations to be absenteeism:
- The employee wrote a statement on his own, but did not work for two weeks, and for a temporary contract or on a probationary period - three days. Except in cases where the employer let you go without working.
- The employee went on vacation unscheduled or took time off without an application - clause 39 of Plenum Resolution No. 2.
For remote workers, absence from contact for more than two days is also considered absenteeism. But we need to look at how, according to the employment contract, we agreed to call and write off. If the connection is via zoom, and the employee is offline for two days, this is absenteeism - Art. 312.3, 312.8 Labor Code of the Russian Federation.
A pregnant woman cannot be fired for absenteeism. Even if the employer was not aware of the provision. But a woman can be reprimanded and deprived of her bonus; there is no prohibition here - Art. 261 Labor Code of the Russian Federation, Determination of the Supreme Court No. 18-KG14-148.
For dismissing a pregnant woman, business owners may even be subject to a criminal case under Art. 145 of the Criminal Code of the Russian Federation.
An employee under 18 years of age can be dismissed for absenteeism only with the consent of the commission on minors’ affairs - Art. 269 Labor Code of the Russian Federation.
To fire someone for absenteeism, you need to fill out the paperwork and follow the procedure from Art. 193 Labor Code of the Russian Federation:
1. On the day of absenteeism, they draw up an absence from work report or write a memo. If an employee does not work for several days, a report or note is drawn up for each day.
Example of an absence from work report
2. The employee is asked for a written explanation.
Example of an explanatory note request
The request is delivered against signature or sent to your home address. They wait two working days for the explanatory note, then they issue an act of refusal.
❗ You cannot ask for an explanatory note while the employee is on sick leave; you must wait until the sheet is closed. Otherwise, the court will cancel the dismissal - Ruling of the Supreme Court No. 69-KG20-3.
3. Next, an order is issued to impose a disciplinary sanction in the form of dismissal.
Unified form of dismissal order No. T-8
The order is issued no later than a month from the date of detection of truancy and six months from the date of the truancy itself. The day of detection - when the employee’s immediate superior found out about absenteeism, and this is not necessarily the owner of the business - clause 34 of Plenum Resolution No. 2.
❗ Days of sick leave and vacation do not count towards the monthly period. Therefore, in reality, it may turn out that the deadline for dismissal for absenteeism will be greatly delayed.
4. The employee is introduced to the dismissal order - against signature. There are three days for this. If the employee does not want to sign the order, they call witnesses and write a statement of refusal.
The day of the order is the last working day of the dismissed person. On this day, he is given a work book, the rest of his salary and compensation for unused vacation.
Article: How to calculate vacation compensation
