"Human Resources Department of a Commercial Organization", 2012, N 2

I DELAYED THE ISSUANCE OF AN EMPLOYMENT CARD - ANSWER ACCORDING TO THE LAW!

Often, an employer, terminating an employment relationship with an employee, does not give him a work book on the last working day, saying: “If you hand over the work, I’ll give it to you,” “We’ll finish the inventory, then you’ll receive it,” and other similar phrases. But does the employer think about what the consequences of untimely issuance of a work book to an employee may be? In most cases - no, but as practice shows - in vain. We will discuss in this article what the consequences of delaying the issuance of this document to an employee may be for the employer.

About the rules for issuing a work book

In accordance with the general procedure for registering termination of an employment contract, established by Art. 84.1 of the Labor Code of the Russian Federation, on the last working day the employer is obliged to issue the employee a work book. If on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. Upon written request from an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of application.

A similar requirement is contained in the Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225: the employer is obliged to give the employee on the day of dismissal (the last day of work) his work book with a notice of dismissal included in it.

Let us say right away that the legislator has predetermined cases when the employer is not responsible for the delay in issuing a work book. Thus, he is released from liability from the day the notification of the need to appear for a work book is sent. The employer is not responsible in cases where the last day of work does not coincide with the day the termination of employment relations is formalized when an employee is dismissed on the basis provided for in paragraphs. "a" clause 6, part 1, art. 81 (for absenteeism, that is, absence from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as absence from the workplace without good reason for more than four hours in a row during the working day (shift) ) or clause 4, part 1, art. 83 of the Labor Code of the Russian Federation (conviction of an employee to punishment that precludes the continuation of previous work, in accordance with a court verdict that has entered into legal force) or upon the dismissal of a woman whose employment contract was extended until the end of pregnancy in accordance with Part 2 of Art. 261 Labor Code of the Russian Federation.

So what responsibility does the employer have?

Material liability

Compensation for delay in issuing a work book

in the amount of average earnings

The material liability of the parties to the labor relationship is established by Art. 232 of the Labor Code of the Russian Federation, according to which the party to the employment contract (employer or employee) who caused damage to the other party compensates for this damage in accordance with this Code and other federal laws.

An employment contract or written agreements attached to it may specify the financial liability of the parties to this contract. At the same time, the contractual liability of the employer to the employee cannot be lower, and the employee to the employer - higher, than provided for by the provisions of the Labor Code of the Russian Federation or other federal laws.

Note! Termination of an employment contract after causing damage does not entail the release of the parties to this contract from financial liability provided for by the Labor Code of the Russian Federation.

The financial liability of a party to an employment contract arises for damage caused by it to the other party to this contract as a result of culpable unlawful behavior (actions or inaction). For an employer to bear financial liability, the following conditions must be met:

The presence of damage (proof of its existence is the employee’s statement of compensation for the damage caused, confirmed by documents. The damage can also be confirmed by testimony);

The employer is guilty of causing damage to the employee (if the employer proves that the damage was not his fault, then he is not obliged to compensate the employee for damage);

Illegality of the employer’s actions or inactions;

The cause-and-effect relationship between culpable actions (inaction) and the resulting damage.

Let us note that it also does not hurt the employee to stock up on evidence that failure to fulfill or improper performance of the duties assigned to the employer resulted in damage.

The employer will bear financial responsibility, in particular, for illegally depriving an employee of the opportunity to work (Article 234 of the Labor Code of the Russian Federation). For example, if he does not receive income as a result of:

Unlawful removal from work, dismissal or 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;

Delays by the employer in issuing a work book to an employee, or entering into the work book an incorrect or non-compliant formulation of the reason for the employee’s dismissal.

The same is stated in paragraph 35 of the Rules for maintaining and storing work books: if there is a delay in issuing a work book to an employee due to the fault of the employer, or if the reason for the employee’s dismissal is incorrect or does not comply with federal law, the employer is obliged to compensate the employee for what he did not receive during the entire delay. earnings. In this case, the day of dismissal (termination of the employment contract) is considered the day the work book is issued. An order (instruction) of the employer is issued about the new day of dismissal of the employee, and an entry is made in the work book. A previously made entry about the day of dismissal is declared invalid in the manner established by the Rules for maintaining and storing work books.

As we see, labor legislation does not make a fundamental distinction between the untimely issuance of a work book and the inclusion of incorrect wording of dismissal in it for the purposes of applying financial liability to the employer: these violations in any case prevent the dismissal from finding a new job.

When resolving a labor dispute in court, the court will find out whether the failure to issue a work book prevented the employee from starting a new job, and, depending on the clarified circumstances, decide on the issue of compensation for lost earnings.

Let us give an example from judicial practice.

P. filed a lawsuit against the LLC and asked to recover wages not paid for the period from December 2009 to the present, compensation for unused vacation, compensation for moral damage and to oblige the company to issue him a work book. In support of the stated demands, P. indicated that since December 2009 he has not been able to receive the due salary and work book with records for the period worked. The Kuibyshevsky District Court of St. Petersburg partially satisfied P.'s claims (the amounts recovered were less than P. requested), and this decision is being appealed.

Having studied the case materials, the judicial panel considers the court's decision subject to cancellation, and here's why.

The general procedure for registering termination of employment relations is defined in Art. 84.1 of the Labor Code of the Russian Federation, according to which, on the day of termination of the employment contract, the employer is obliged to issue the employee a work book and make payments to him in accordance with Art. 140 Labor Code of the Russian Federation. Upon dismissal, P. was not given a work book and no invitation was sent to appear for a work book by mail.

The district court, obliging the LLC to issue a work book to the plaintiff, did not take into account the provisions of Art. 234 of the Labor Code of the Russian Federation on the consequences of failure to issue a work book. The obligation to compensate the employee for material damage provided for in paragraph. 4 tbsp. 234, can be imposed on the employer only if these circumstances prevented the employee from taking a new job.

Taking into account the above, the court should have established whether the failure to issue a work book to the employee prevented him from entering a new job, and depending on this, resolve the issue of the consequences of failure to issue this document. Since the district court did not do this, the decision is subject to cancellation, and the case must be considered again (Cassation ruling of the St. Petersburg City Court dated October 4, 2011 N 33-14974/2011).

But, as practice shows, for most courts, in order to recover lost earnings, it is enough to recognize the fact of failure to issue a work book within the period established by the Labor Code (Determination of the Moscow City Court dated August 26, 2011 in case No. 33-24686).

So, if there is a delay in issuing a work book, the employer must compensate the employee for the earnings he did not receive. The question arises: how much and how to calculate it?

The Plenum of the Armed Forces of the Russian Federation explained in Resolution No. 2: since Art. 139 of the Labor Code of the Russian Federation establishes a uniform procedure for calculating the average salary for all cases of determining its size; the same procedure should be used to determine the average earnings when collecting sums of money for forced absence caused by:

Delay in issuing a work book to a dismissed person;

Incorrect formulation of the reason for dismissal (Part 8 of Article 394 of the Labor Code of the Russian Federation);

Delay in the execution of a court decision on reinstatement at work (Article 396 of the Labor Code of the Russian Federation).

It is necessary to keep in mind that the peculiarities of the procedure for calculating the average salary established by Art. 139 of the Labor Code of the Russian Federation, determined by Decree of the Government of the Russian Federation of December 24, 2007 N 922.

Payment of compensation for the delay in issuing a work book to an employee is formalized by order. A court decision made in favor of the employee will become the basis for issuing this order. Let's give an example.

LLC "Red October"

Order No. 12

about payment of compensation

due to the delay in issuing the work book

Based on Art. 234 of the Labor Code of the Russian Federation and decisions of the Avtozavodsky District Court of Nizhny Novgorod dated December 28, 2011 N 13/1302-2011

I ORDER

pay Anna Ivanovna Eliseeva compensation for late issuance of a work book in the amount of 24,204 rubles.

Director Pavlov / R. Zh. Pavlov/

I have read the order:

Accountant Pronina, 01/23/2012 /N. O. Pronina/

Compensation for moral damage

One of the ways a citizen can protect his rights is compensation for moral damage. The Plenum of the Armed Forces of the Russian Federation in Resolution No. 10 of December 20, 1994 “Some issues of application of legislation on compensation for moral damage” explained that moral damage is understood as moral or physical suffering caused by actions (inaction) encroaching on intangible property belonging to a citizen from birth or by force of law benefits (life, health, personal dignity, business reputation, privacy, personal and family secrets, etc.) or violating his personal non-property rights (the right to use his name, the right of authorship and other non-property rights in accordance with the laws on protection of rights to the results of intellectual activity) or violating the property rights of a citizen.

Note. According to Art. 21 of the Labor Code of the Russian Federation, an employee has the right to compensation for damage caused to him in connection with the performance of work duties, and compensation for moral damage in the manner established by the Labor Code of the Russian Federation and other federal laws.

Compensation for moral damage is made regardless of the fault of the causer of harm, if it is caused (Article 1100 of the Civil Code of the Russian Federation):

The life or health of a citizen is a source of increased danger;

Dissemination of information discrediting honor, dignity and business reputation;

In other cases provided by law.

One of the obligations established for the employer by Art. 22 of the Labor Code of the Russian Federation - compensation for harm caused to employees in connection with the performance of their labor duties, as well as compensation for moral damage in the manner and on the terms established by the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of the Russian Federation.

The procedure for compensation for moral damage is established by Art. 237 of the Labor Code of the Russian Federation, according to which such harm caused to an employee by unlawful actions or inaction of the employer is compensated to him in cash in the amount determined by agreement of the parties to the employment contract.

In the event of a dispute, the fact of causing moral damage to the employee and the amount of compensation for it are determined by the court, regardless of the property damage subject to compensation.

Note! Compensation for moral damage is carried out regardless of the property damage subject to compensation (Article 1099 of the Civil Code of the Russian Federation).

When determining the amount of compensation for moral damage, the court takes into account the degree of guilt of the offender and other circumstances worthy of attention. The court must also take into account the degree of physical and moral suffering associated with the individual characteristics of the person who suffered harm (Article 151 of the Civil Code of the Russian Federation).

In addition, the court must take into account the requirements of reasonableness and fairness.

It should be noted that almost every claim for the restoration of violated rights of an employee is accompanied by a claim for compensation for moral damage. If the court sides with the employee, then it satisfies this requirement. Of course, workers overestimate the amount of compensation for their moral suffering when they lose the opportunity to work due to late issuance of a work book. The court usually reduces the amount of compensation.

Payment of compensation for moral damage must also be formalized by order. If the parties to the labor relationship managed to agree on its size, then the basis for issuing such an order will be an agreement drawn up and signed by them. If an agreement has not been reached, the amount of compensation will be determined by the judges and it is their decision that will become the basis for the order to pay compensation for moral damage to the employee.

Court expenses

In addition to compensation for material and moral damage, the employer will have to pay legal costs if the court decides the case in favor of the employee. If an employee applies for a labor dispute to be considered in a district, city or regional court, legal costs are inevitable. According to Art. 88 of the Code of Civil Procedure of the Russian Federation, they consist of state duties and costs associated with the consideration of the case. The latter include:

Payments to witnesses, experts, specialists and translators;

Payment for interpreter services by foreign citizens and stateless persons, unless otherwise provided by an international treaty of the Russian Federation;

Travel and accommodation expenses of the parties and third parties incurred by them in connection with their appearance in court;

Payment for representatives' services;

Postal expenses related to the consideration of the case and other expenses recognized by the court as necessary.

By virtue of Art. 98 of the Code of Civil Procedure of the Russian Federation, the court awards (demands from the guilty party) compensation for all legal expenses incurred by the party in whose favor the court made the decision in the case. Since the court most often sides with the employees, it is the employer who can demand payment of legal costs.

Notification of the need to appear for a book -

"Lifebuoy"

If on the last day of work the dismissed person refuses to receive a work book in the presence of witnesses, the employer should not think that by drawing up an act of refusal to receive the book, he will relieve himself of responsibility for the delay in issuing it. If such a situation arises, the employer must, after drawing up an act in accordance with the requirements of Art. 84.1 of the Labor Code of the Russian Federation, send a notice of the need to appear for a work book by mail. Then not a single regulatory body will find anything to complain about, and the labor dispute that arises will be resolved in favor of the employer.

Sometimes an employer, having fired an employee, does not issue a work book on the last working day, and sends a notice of the need to appear for it (as if having come to his senses, realizing that he faces liability) only after some time, for example a month, believing that with At this point, he is freed from risk. However, this is a misconception. Let us repeat that the employer is released from liability for failure to issue a work book only from the date of sending a notice of the need to appear for this document. Therefore, if an employee goes to court, then earnings for the period from the date of dismissal to the day the notice is sent will be recovered from the employer.

Thus, the Sverdlovsk Regional Court, in its Ruling dated 08/09/2011 in case No. 33-11075/2011, considered a situation where an employee was dismissed on 09/17/2010, but a work book was not issued - the owner received it only on 01/19/2011. The employee asked to recover wages for this entire period. But the court indicated that since the employer sent the former employee a notice of receipt of the work book on December 9, 2010, it was from this date that he was released from liability for the delay in issuing the work book. Thus, the former employee received compensation for the period of delay in issuing a work book from 09/18/2010 to 12/08/2010.

Administrative responsibility

A delay in issuing a work book to a resigned employee is a violation of labor legislation, which obliges it to be issued on the last working day.

Administrative liability is provided for violation of labor and labor protection legislation. So, on the basis of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, an administrative fine may be imposed on an employer who fails to issue a work book on time:

For officials - in the amount of 1000 to 5000 rubles;

For persons carrying out entrepreneurial activities without forming a legal entity - from 1000 to 5000 rubles. or administrative suspension of activities for up to 90 days;

For legal entities - from 30,000 to 50,000 rubles. or administrative suspension of activities for up to 90 days.

Summarize

It is clear from the article that the employer’s desire to “teach a lesson” to an employee by not issuing him a work book upon dismissal can result in negative consequences. It is clear that you should not delay the issuance of a work book, so that later you do not have to meet inspectors from the state labor inspectorate and go to court.

T. Yu. Komissarova

Journal expert

"Human Resources Department

commercial organization"

Signed for seal

• HR records management

Keywords:

1 -1

B (indicate the name of the court to which the application is being filed)

Plaintiff/Representative of the Plaintiff: (indicate full name, place of residence, other information may be indicated: telephone numbers, fax numbers, email addresses)

Defendant: (indicate the name of the defendant, location, other information may be indicated: telephone numbers, fax numbers, email addresses)

Cost of claim: (amount in rubles)

Statement of claim

I, (indicate your full name), during the period from “__” ________ 20__ to “__” ________ 20__ worked (indicate the full name of your employer) (hereinafter referred to as the Respondent) in the position of (indicate the position or positions in which you worked during the specified period of time). A copy of the employment contract dated “___” ________ 20__ No. (indicate the number and date of the employment contract under which you worked if you have one), a copy of the work book and the order of appointment to the position dated “___” _______ 20__ are attached (do not forget to attach to the statement of claim copies of the work book and the order of appointment to the position, if available).

I turned to the Defendant “___”________ ___ with a request to terminate the fixed-term employment contract with me from “___”________ ___.

Upon expiration of the notice period for dismissal, I stopped working and submitted a request for the issuance of a work book, a copy of the order of termination of the employment contract, a certificate of salary, (other documents related to work), as well as about the final settlement with me. On the last day of work, the defendant did not give me the work book and the specified documents, and did not make the final payment to me.

Due to the delay in issuing a work book and documents related to working for the Defendant, I was unable to get a new job (or other circumstances).

In accordance with Article 165 of the Labor Code of the Russian Federation, the Defendant is obliged to pay me compensation for the delay through his fault in issuing me a work book upon dismissal. My average salary is (indicate the average salary) rubles per day. The compensation to be paid is calculated for the time from “___”________ ___ (make the calculation after three days from the date of filing a written demand) and until the date of actual issue. At the time of filing the claim, the amount of compensation is (specify the amount) rubles.

Based on the above and in accordance with Articles 84.1, 165, 234, 237, 391, 392 of the Labor Code of the Russian Federation, guided by the provisions of Articles 22, 24, 131, 132 of the Civil Procedure Code of the Russian Federation,

Request from the Defendant my work record book, a copy of the order to terminate the employment contract with me, a certificate of the amount of my salary (other documents related to work).

To recover from the Defendant in my favor the wages that were not paid to me upon dismissal for (specify the period) in the amount of (specify the amount to be recovered) rubles.

Due to the delay in issuing my work book, I must recover compensation from the employer in the amount of (indicate the amount of the amount to be recovered) rubles.

Appendix: (attach to the statement of claim all available documents on your case, listing them and briefly describing them):

1. A copy of the statement of claim on ___ sheets in ___ copies (indicate the number of sheets of the statement of claim, the number of copies by the number of defendants and third parties);

2. A copy of the employment contract dated “_” _______ 20__ No.__ on __ sheets (indicate the number of sheets of the contract, the number of copies according to the number of defendants and third parties if they do not have the specified document);

3. A copy of the order of appointment to the position on ___ sheets in ___ copies (indicate the number of sheets, the number of copies by the number of defendants and third parties if they do not have the specified document);

6. Calculation of the amount to be recovered (signed by the plaintiff, his representative) on ___ sheets in ___ copies (indicate the number of sheets, the number of copies according to the number of defendants and third parties).

7. Documents confirming the circumstances on which the plaintiff bases his claims, copies of these documents for defendants and third parties, if they do not have copies.

8. Power of attorney or other document certifying the authority of the plaintiff’s representative.

"___" __________ 20__.

Plaintiff/Representative of the plaintiff (if he has the authority to sign the application and present it to the court): _________ (full name and signature).

Sample, form for filling out an application to the court of the Russian Federation if they do not issue a work book. In accordance with Article 165 of the Labor Code of the Russian Federation.

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When terminating an employment contract with an employer, a company employee must receive his or her work record book. According to the regulations of the Russian Federation, the deadline for returning the document is the employee’s last working day.

However, often for one reason or another, employers are in no hurry to return the work book. In this article we will try to analyze in detail what to do, when this happens and who to contact.

Grounds releasing the employer from liability for failure to issue a document upon dismissal

Let's consider the most typical situations when the head of a company is not answerable to the law.

The employee is absent from the workplace

This could be any force majeure circumstances: illness, departure to another city or for family reasons, etc.

In such situations, there is only one way out - the employer sends a letter with a notification of delivery to the employee with a request to pick up the document or agree to send it by mail.

In this case, the manager is released from liability for late delivery.

Since sending by mail is a fairly serious step, you need to obtain the employee’s written consent to do this. If the employee did not give his consent to forward the document, the head of the company is obliged to create conditions for their storage until required, for a period of at least fifty years.

It also happens when an employee, due to moving to another country or for any other reason, is physically unable to come and pick up his work book. In this situation, there is only one option left - to issue a power of attorney. This can be done at any notary office.

The document states:

• personal data of the attorney and former employee of the company (last name, first name and patronymic, passport details and residential address, signature);
• name of the company, its details;
• signature of the document owner;
• date of preparation and validity period.

After issuing a notarized power of attorney, the attorney will be able to obtain a work book from the company’s human resources department, where employees are required to issue a receipt indicating that the document was issued.

The employee refuses to collect his personal documents

For example, an employee does not agree with the dismissal, the employer is obliged to try at all costs to return the papers by any possible means.
If an employee is on his last day at his workplace, but for some reason ignores requests to pick up papers, it is necessary to draw up a report.

It records all the points: indicates the reasons why the employee refuses to pick up the documents. After this, the employee signs the document and indicates the date, then transfers it to the HR department.

In a situation where the moment to draw up an act was missed, other measures must be taken. Try sending your former colleague a registered letter with a request to contact the HR department and pick up your work book.

This paper is written in any form. It is necessary to indicate: company name, employee information, date of sending the letter, contacts and other necessary information.

When the employer is responsible for the delay in issuing a work book to an employee upon dismissal

Many company managers use blackmail, threats, and intimidate workers without issuing them a work book in a timely manner. Regardless of the reasons and pretexts for which the employer refuses to issue a document, a former employee of the company has the right to complain about the manager to the authorized bodies or try to influence in other ways.

What financial liability does an employer bear if he refuses to issue a work book?

If the document is not issued, the employee has the right to demand compensation for lost earnings due to the impossibility of further employment without a work book.

A former employee of the company has the right to demand financial compensation for lost earnings.

According to Article 232 of the Labor Code of the Russian Federation, financial liability is provided for the untimely issuance of a document to a company employee. In accordance with the employment contract or other agreements, the amount of compensation may be specified.

The law also provides for monetary compensation to the employee. The amount of payments is determined by the amount of lost earnings that the employee could have received if he had a document in his hands indicating his length of service.

The employer has obligations not only towards employees, but also towards the state, in accordance with Article 5.27 of the Code of Administrative Offences.

For late issuance, the labor manager may receive a fine. The amount varies from thirty to fifty thousand Russian rubles.

Officials and managers of enterprises may be fined in the amount of one thousand to five thousand rubles. Individual entrepreneurs - over 5000 Russian rubles. The company or enterprise is required to pay monetary compensation to the state treasury.

How can an employer compensate for moral damages for the delay in issuing a work book?

Another effective way to protect your rights is to demand compensation for mental suffering. This term in labor law refers to violations of his personal non-property or property rights related to labor activities.

The amounts of payments and compensation, when the parties do not reach a common consensus, are established in court. In this case, the limitation period is set at three months.

It is during this period and no later that a former employee of the enterprise can go to court and receive monetary compensation. Human rights authorities take into account all the circumstances and the degree of guilt of the offender.

Administrative liability for refusal to issue documents

In addition to material damage to a former employee, the company may incur other liabilities for not issuing a document on time. The employer may be subject to a fine in accordance with the administrative code of the Russian Federation.

The dimensions, according to part one of Article 5.27.1 of the Code of Administrative Offenses in the Russian Federation, can be as follows:

• Individual entrepreneurs are subject to a fine of one thousand to five thousand rubles.
• For companies - from thirty to fifty thousand rubles.
• For officials - a warning or an amount from one thousand to five thousand.

In case of repeated offenses, fines may be increased:

• for companies and enterprises - from fifty to seventy thousand rubles.
• for heads of organizations - from ten to twenty thousand rubles or suspension from work for a period of one or three years.
• for individual entrepreneurs - from ten to twenty thousand rubles.

To bring the employer to administrative liability, the employee should contact the authorized labor and employment authorities. According to Article 5.27 of the Code of Administrative Offenses of the Russian Federation, they will help bring the offender to justice.

In cases where, at the request of a former employee of the company, the labor inspectorate is involved, employees will be required to check all the facts. Since most organizations are afraid of being involved in such situations and running into a fine, as a rule, the threat of involving the authorized bodies can help get the work book back.

What to do and where to go if an employee is not given documents upon dismissal

If the employer refuses to return to the employee the documents necessary for further employment, you need to try to find a compromise. If it is not possible to resolve the conflict peacefully, you can move on to tougher actions.

There is a specific algorithm for such situations. This is the only way to protect your violated rights.

So, the procedure could be as follows:

Write an application addressed to the general director of the company with a request to issue a work book, in accordance with Article 80 of the Labor Code of the Russian Federation.

The application must indicate: position, organization details, passport details, date of application and signature. The employer must understand that the employee is familiar with his rights and understands that he is violating them. Write the application in two copies and submit it to the secretary for approval. Then don’t forget to pick up your copy with an acceptance mark.

If a written request is not accepted, send a registered letter by mail. In this case, it is necessary to draw up an inventory in two copies.

In cases where the above actions did not help, it is necessary to move on to more active actions and contact the supervisory authorities for labor and employment, whose responsibilities include examining such issues.

In addition, a former employee of the organization has the right to file a complaint with the prosecutor’s office. To do this, you should send a complaint and write a corresponding statement. The form of this appeal should be the same as a letter of notification to a company that refuses to return the employee’s personal documents.

Well, the main course of action is to appeal to the judicial authorities with a demand for the issuance of a work book and the recovery of funds for its unlawful deduction. In this situation, it is necessary for labor issues.

Failure to issue a work book upon dismissal is a gross violation of the employee’s legal rights. But few people know that an employee can not only hold the former manager accountable, but also receive moral and material compensation from an unscrupulous employer.

Often the reason that a dismissed employee did not receive this document on time may be not only the negligence of the personnel department, but also a tense relationship with the manager. An attempt to harm or manipulate an employee by withholding one of the main employment documents leads to especially unpleasant consequences if the quitter not only leaves, but plans to take a new job in the near future.

In most cases, it is pointless to sort things out with the former management, ask or start a scandal; all this can only worsen the situation. It is possible to protect yourself by remaining calm and acting in accordance with labor laws. Where should a fired employee contact? What should you do if, after dismissal, the employer does not give you your work book? What should you do to compensate yourself for losses associated with these illegal actions?

The obligation to issue a work book to the dismissed employee. When an employer violates

Labor Code of the Russian Federation, namely Art. 80 and 84.1 of the Labor Code of the Russian Federation, obliges any employer to issue a completed work book no later than on the last day of work, which will also be the day the employee is dismissed. The work book, as well as other documents confirming information about work activity, are issued personally to the employee. In exceptional circumstances, for example, if a former employee is convicted and is in the place of serving his sentence, his relatives can receive the work book by proxy.

But if, under any pretext, the employer does not hand over the work book, what should you do first? Having received a refusal to issue this document, the dismissed employee has the right, on the same day, to submit a written request (application) to the employer’s representative or the human resources department for the issuance of a work book after dismissal. The period for consideration of such an application is three days, during which the employer is obliged to satisfy the employee’s legal request by handing over a work book to the resigning employee.

A trade union organization, if there is one, can greatly contribute to a conflict-free resolution of the situation. A representative of the trade union committee can not only explain the rights to the employee or help draw up a written appeal, but also act as a mediator in negotiations between the dismissed employee (group of employees) and representatives of the employer.

Application (appeal to the employer): how to write?

The application is written in free form on a standard A4 sheet. It contains the following information:

• Full name and contact information of the person making the application (employee).
• The requirement to issue the applicant with a work book in person in connection with dismissal.
• Date of application.
• Signature and transcript of the applicant's signature.

If for some reason the employee is unable to appear in person for his work book later, consent to send the document by mail can be attached to the application. The consent must indicate the address to which the work book of the dismissed employee should be sent.

The application or written request should be drawn up in two copies, one of which is handed over to the employer. On the second copy, the employer’s representative puts a note indicating receipt of the application with his signature; the employee keeps this document. If the employer's representative refuses to accept the application or leave a signature on the second copy, the written appeal should be sent to the employer's organization with notification by registered mail.

Of course, if the failure to issue a work book by the employer was the result of an error in the work of the personnel service, a simple written request will be enough to correct the situation. It’s another matter if, by retaining the documents, the employer deliberately prevents the former employee from finding employment. In such a situation, it will not be possible to solve the problem without contacting regulatory authorities or the court. What should an employee do if they intentionally do not issue a work book?

Application to the Labor and Employment Inspectorate. What consequences will an appeal to Rostrud have?

If they do not give the work book or refuse to send the document by mail, the employee’s next step will be to contact the territorial office (Rostrud). An employee who is deprived of the opportunity to work and earn money can write a complaint (application) to the head of the local branch of Rostrud about the non-issuance of a work book with a request to conduct an inspection and bring the former employer to administrative responsibility.

An application to the labor inspectorate must be drawn up in writing in two copies or filled out in a special section of the Rostrud website via the Internet. The application will need to detail the following:

• Information about the employer: name, INN, OGRN of the organization, legal and actual address, full name. and the position of manager.
• An offense in respect of which an investigation should be carried out, with reference to the articles of the Labor Code of the Russian Federation. In the case under consideration, this is the employer’s retention of the work book after termination of the employment contract with the citizen.
• Please take action: conduct an inspection of Rostrud, bring the former manager to administrative responsibility, oblige the personnel service to return the work book to the dismissed citizen.
• Copies of supporting documents, for example, an employment contract with the employer (inventory of application and copies).

In addition, if you initiate a visit of a labor inspector to an organization, then not only the fact of unlawful withholding of the work book will be checked, but all the activities of the employer are within the competence of Rostrud. Based on the results of the inspection, the employer will be given an order indicating all violations identified in the organization and the time frame for correcting them. Including the period allotted for issuing all required documents to the dismissed employee.

Simultaneously with the application to the labor and employment inspectorate, the former employee has the right to submit a written complaint about unlawful actions to the prosecutor's office at the location of the former employer. In this case, a prosecutor’s investigation will also be carried out regarding violations of legislation regarding labor rights.

Administrative responsibility of the employer. Fines, sanctions

Failure to comply with an issued order, including violation of the deadlines for issuing or timely execution of a work book, gives the Federal Labor and Employment Inspectorate the right to bring the employer who violated the law to administrative liability. The fine for failure to issue a work book upon dismissal for a legal entity can range from 30 to 50 thousand rubles. An official, that is, a manager, who fails to issue a work book on time, may be punished by disqualification for up to three years or a fine of 1,000 to 5,000 rubles.

But if, despite the inspection of Rostrud and the issued order, the employer does not give the work book, what should the employee do?

How to oblige a former employer to issue a work book through the court

How else can you act if they don’t give you your work book? Go to court. There is no need to delay going to court. The statute of limitations for failure to issue a work book and other documents on the day of dismissal is limited to 3 months from the date of termination of the employment contract.

Litigation is the most common and effective way to restore violated rights if the employer does not hand over the work book. What should I do to legally oblige my former boss to hand over a completed work book?

First, the employee must correctly draw up a statement of claim. You can write it yourself or seek legal advice. You will need to provide the following information:

• Information about the plaintiff (applicant).
• Periods of work and position of the applicant, date of dismissal.
• Employer information.
• An offense committed against the applicant, with reference to articles of the Labor Code of the Russian Federation.
• The applicant’s request: issue a work book, make changes to existing records, etc. The statement of claim for non-issuance of a work book also includes demands for moral compensation and compensation for material damage, if any.
• Enclosures: copies of supporting documents.

A copy of the statement of claim is submitted against signature or sent with notification by registered mail to the defendant, that is, the employer.

Moral compensation for the employee

Compensation for moral damage caused by the former boss’s actions is made in the manner established by Art. 237 of the Labor Code of the Russian Federation. The amount of payments for a dismissed employee is established by the court, taking into account all the circumstances of the violation of laws and labor rights committed by the former employer.

Material compensation for the employee

Failure to issue (withhold) a work book at a previous job deprives a citizen of the opportunity to find a new job or apply for temporary support at the Employment Center. Thus, the employee remains without the opportunity to receive or receive wages. What to do? Do they not hand over your work book or deliberately delay the issuance of this document? This is primarily a reason to demand compensation through the court for wages for the period when the employee could not find a job due to the fault of the former employer. For each day of forced inactivity, the court will order the employee to pay compensation in the amount of no less than the average earnings in the organization of the former employer.

Length of service and day of dismissal

Another violation of the rights of a dismissed employee concerns the length of service that the employee lost due to the fault of the former employer. By a court decision, the employee is reinstated at work for the entire period when the work record book was with the unscrupulous employer. The day of dismissal will be recognized as the day when the employee was actually issued a work book and other documents confirming information about work and length of service. After the court decision comes into force, the employer is obliged to:

• Issue an order to reinstate the dismissed employee at work in the position he held at the time of dismissal.
• Make an entry in the work book of the reinstated employee to invalidate the previously made entry on termination of the employment contract with the employee.
• Issue a new one dated on the day of issue of the work book.
• Make an appropriate entry in the work book.

Important! Reinstatement does not entail the employee’s obligation to work for this period.

Circumstances and measures excluding the employer's liability

But is the law always on the employee’s side? Failure to issue a work book on the day of dismissal does not entail liability for the employer if the head (representative) of the organization did not have the opportunity to hand over the document to the employee in a timely manner, but he took all the necessary measures.

Perhaps the most common situation when an employer does not hand over a work book through no fault of his own is the absence of the dismissed employee on the last day of work or shift (day of dismissal). The reasons for this may be absenteeism, temporary disability, vacation followed by dismissal and other circumstances. The employer can take the following measures:

• Draw up an act confirming the absence of the dismissed employee from the workplace on that day and enter the corresponding mark in the working time sheet.
• Send a letter to the employee in a timely manner with an official notification of the need to appear in person to receive a work book. As a rule, such a document is sent by registered mail to the employee’s place of registration (registration), as well as to all the employee’s addresses that are known to the employer. From the date of dispatch, the employer is relieved of responsibility for late issuance of the document.

In a situation where the failure to issue a work book upon dismissal occurred due to a refusal to receive the document, the employer, in accordance with the law, must act as follows:

• On the day of dismissal, an act is drawn up about the citizen’s refusal to receive a work book. The employee must be familiarized with the act by signature.
• Ensure the storage of an unclaimed work book until it is handed over to the employee in person or for 75 years from the date of dismissal.

Where can I restore my employment?

But there are also very difficult cases. For example, the employer does not hand over the work book, and the organization in which the employee worked ceases to exist, that is, is liquidated. Difficulties arise if it is impossible to establish the whereabouts of the former manager. Over time, it may be possible to find the unscrupulous employer and return the lost document. But in order to be hired for a new job or calculate work experience, the employee will need to draw up and receive a duplicate of the work book. How to confirm existing experience and who has the right to issue a duplicate document?

First of all, the employee will have to obtain documents confirming his existing and general status. Such documents may be:

• Certificates from the Social Insurance Fund and the Pension Fund branch confirming the availability of social contributions and pension contributions during these periods.
• Certificates, copies of personnel administrative documents (orders) from previous places of work, including information from archival organizations.

Based on supporting documents, information about the employee’s past work activity is entered into the duplicate. Who has the right to issue such a duplicate? According to the currently existing Rules, the employee must apply for a duplicate at his last place of work. But what to do when it is the last employer who is to blame for the loss of his employee’s documents, and it is not possible to find him?

If an employee plans to find a new job, then the new employer has the right to draw up and issue a new work book and indicate information about the length of service based on supporting documents. In the new work book, issued to replace the lost one, the total length of previous work experience is entered in total, but without specifying the periods of work, indicating the positions of the employee and previous employers.

Statement of claim for compensation for delay in work record. Delay in issuing a work book upon dismissal is a violation of the law. In this case, it is necessary to apply to the court for the recovery of wages due to the delay in issuing the work book. The delay in issuing a work book is a violation of Article 62 of the Labor Code of the Russian Federation, and on the basis of Art. 234 of the Labor Code of the Russian Federation, the employer does not allow you to work legally. As a result, on the basis of Art. 234 of the Labor Code of the Russian Federation, the employer is obliged to compensate for lost earnings in all cases of illegal deprivation of the opportunity to work. In my case, when they simply forced me to issue a work book and did not make the final payment, I simply filed a claim in court for the recovery of wages and moral damages. We discussed earlier how to prove moral damages.

If at that time I had paid attention to Article 234 of the Labor Code of the Russian Federation, I would have definitely asked the court to recover the earnings that were not received.

Delay in issuing work book

When an employee is dismissed (termination of an employment contract), all entries made in his work book during his time working for this employer are certified by the signature of the employer or the person responsible for maintaining work books, the seal of the employer and the signature of the employee himself. If the work book was filled out in the state language of the Russian Federation and in the state language of the republic within the Russian Federation, both texts are certified.

The employer is obliged to issue the employee on the day of dismissal (the last day of work) his work book with a record of dismissal included in it. If there is a delay in issuing a work book to an employee due to the fault of the employer, or if the reason for the employee’s dismissal is entered into the work book incorrectly or does not comply with federal law, the employer is obliged to compensate the employee for the earnings he did not receive during the entire delay. In this case, the day of dismissal (termination of the employment contract) is considered the day the work book is issued. On the new day of dismissal of the employee (termination of the employment contract), an order (instruction) of the employer is issued, and an entry is made in the work book. A previously made entry about the day of dismissal is invalid in the manner prescribed by these Rules.

If on the day of the employee’s dismissal (termination of the employment contract) it is impossible to issue a work book due to the employee’s absence or his refusal to receive the work book in hand, the employer sends the employee a notice of the need to appear for the work book or agree to send it by mail. Sending a work book by mail to the address specified by the employee is permitted only with his consent. From the date of sending this notification, the employer is released from liability for the delay in issuing a work book to the employee.

In the event of the death of an employee, the work book, after making an appropriate entry on the termination of the employment contract, is handed over to one of his relatives against signature or sent by mail upon the written application of one of the relatives.

To court
Plaintiff:_________________
Address:__________________
Defendant:_______________
Address:__________________

I, _____________, worked in the organization ____________ from “__” ______ 20__ to “__” _________ 20__ in the position of ____________. By Order N. ______ dated _____ I was dismissed from my position under Art. ____ Labor Code of the Russian Federation since “__” ________ 20__
In accordance with Article 62 of the Labor Code of the Russian Federation, upon termination of an employment contract, the employer is obliged to issue the employee a work book on the day of dismissal. However, to date I have not been issued a work book, despite my repeated requests.
According to Article 234 of the Labor Code of the Russian Federation, the employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work, including when the employer delays issuing the employee’s work book.
In connection with the above and on the basis of Articles 62, 234 of the Labor Code of the Russian Federation, Art. 131-133 Code of Civil Procedure of the Russian Federation,

1. Collect wages from ______________ in the amount of __________ rubles. during the delay in issuing a work book from _________ to the day of its actual issue.

Application:
1. A copy of the statement of claim to the defendant.
2. Other available documents

"__" __________ 20__ ____________
(signature)