The employer does not hand over the work book upon dismissal

On the day of termination of the employment relationship, the employee is required to issue a work book and make a payment. Also, an employee can, upon written application, receive copies of orders for employment, transfers to another job, or dismissal; extracts from the work book; certificates of wages, accrued and actually paid insurance contributions for compulsory pension insurance, period of work with a given employer, etc.

When a work book is handed over to an employee, he must sign for its receipt in the accounting book and in his personal card. This is provided for by the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225 (hereinafter referred to as the Rules).

If the employer does not issue a work book on time, then he will have to compensate the employee for the entire delay. The fact is that the day of dismissal in this case is considered the day the work book is issued. The employer is obliged to issue an order on a new day of dismissal and make this entry in the book. A previously made entry about the day of dismissal is considered invalid.

Responsibilities of the employer when dismissing an employee

When terminating the employment relationship, the administration of the enterprise is obliged to give the resigning citizen a work book with a record of the reasons for dismissal, and make a payment on that day. In addition, if at the time of dismissal an employee needs copies of documents that are related to this place of work, then he, having applied at least three days before dismissal with an application for the provision of these documents, has the right to receive them from the employer in accordance with Article 62 Labor Code of the Russian Federation. Such documents include:

The order of acceptance to work;
relevant transfer orders;
order of dismissal from employment;
certificates of accrued or paid salaries;
on accrued and paid contributions for compulsory insurance (pension).

How and where to restore your work book

How can I restore my work record?

It is not possible to restore the work record. This document must be drawn up and issued in a new form. To do this, you must confirm your work experience.

This can be done by contacting the territorial divisions of the Russian Pension Fund and the Social Insurance Fund in the territory where the employer is located.

After this, based on the previously made deductions, the relevant authorities will provide the information necessary for the preparation of a new document for reference. They will be useful in the future for contributions to the Pension Fund and the new employer.

The process of registering a work book is relatively slow, but this is required if the employer goes bankrupt or runs away from the company. In this case, the issuance of a work book to an employee may take several years.

Therefore, the best option seems to be to issue a new document, which will allow you to find a new job in the future without significant complications.

Failure to issue a work book by an employer is a fairly serious violation that can be punished in the most severe manner, including bringing managers and staff to criminal liability. In this regard, you should competently study labor legislation and strive to defend your legal rights, because your future career in the future will depend on this.

Step-by-step instructions on how to return your work book if it was not issued upon dismissal in the following video:

Reinstatement of work experience at an enterprise through the court

One of the violations of an employee’s rights is the deprivation of his employment (insurance) period due to unlawful actions of the employer. According to a court decision, the employer must reinstate the employee in his previous position for the period of deprivation of his work book. The day of actual dismissal should be considered the day on which the documents, including the work book, are returned to him.

After the court decision comes into force, the employer must:

issue an internal order and reinstate the employee to his previous job;
In accordance with this order, make an entry in the book about returning him to his previous position and canceling the previously made record of dismissal, declaring it invalid;
issue again an order containing a different date for the employee’s dismissal, corresponding to the date of delivery of the book;
Before issuing the book, make a new entry in it about the dismissal.

Important! After issuing an order to return the employee to his previous duties, he is not required to go to work and work the required period.

When must an employer hand over a work book?

So, the book must be given to the citizen on the last working day. The process of issuing it is possible in two options:

The citizen receives the book independently by signing in the accounting book and in the personal card.
Receiving your book by mail if the employee was absent from work on the day of dismissal. To do this, he must give his consent.

Sending a work book by mail is a complex issue. Therefore, HR employees must treat this procedure carefully. On the day of dismissal, if the quitter is absent or refuses to receive his documents, a corresponding act must be drawn up stating the impossibility of issuing the book.

Of course, this act must also be signed by witnesses. Then the retired citizen is sent a registered notice indicating his mandatory appearance for his book or consent to its mailing. The letter is sent with notification. This procedure for notifying a former employee will allow the administration to avoid liability (Article 84.1 of the Labor Code of the Russian Federation).

Is labor delay not an obstacle to employment in a new place?

In turn, the St. Petersburg City Court did not seek compensation from the organization at all for the work book not being issued to the employee on time. (Appeal ruling dated November 6, 2018 No. 33-22399/2018). The judges noted that the fact of delay in itself is not sufficient to qualify the employee for such compensation. The employee must also prove the existence of attempts at employment and refusals due to his lack of a work book. In addition, in the situation considered, although the employer lost the original work book, he made efforts to correct it, the judges indicated.

So, the HR service manager of the LLC agreed with the employer to dismiss her by agreement of the parties (clause 1 of part 1 of Article 77 of the Labor Code) and to send the work book by mail to her home address. After some time, it turned out that the work was lost.

The employer independently decided to issue the former employee a duplicate document, for which he sent requests to her previous places of work. As a result, the dismissed employee received the necessary papers only four months later and went to court, demanding to recover 170 thousand in compensation from the employer for the delay in issuing the work book.

The courts of two instances rejected the claim, pointing out that the employer is obliged to reimburse earnings for the period of delay in issuing a work book only if the former employee proves that he was unable to find a job without having documents in hand. The plaintiff informed the court about the fact of refusal to hire, but did not provide evidence of this.

As a result, the St. Petersburg City Court concluded that there were no grounds for compensating the employee for damages due to illegal deprivation of the opportunity to work.

The same argumentation is presented in the appeal ruling of the Moscow City Court dated November 14, 2016 in case No. 33-39997/2016. It’s funny that the Moscow City Court referred to its right to evaluate evidence according to its inner conviction (Part 1 of Article 67 of the Code of Civil Procedure of the Russian Federation).

As for the Nizhny Novgorod Regional Court, in its ruling dated 02/06/2018 in case No. 33-771/2018, the following was noted: a delay in issuing a work book is an obstacle to the employee taking a new job, and, as a result, entails the deprivation of the employee’s opportunity to work and receive wages. Accordingly, a legally significant circumstance is the establishment of the fact that the employee, after dismissal, applied to other employers for the purpose of employment and the fact that this was refused due to the lack of a work book. In this case, the responsibility to prove these circumstances rests with the employee. If we follow this logic, then an employee who has not provided evidence of applying to other employers for employment after dismissal and being denied this because he does not have a work book, has no right to compensation.

note

From the day the employee is notified of the need to appear for a work book or agree to have it sent by mail, the employer is released from liability for the delay in issuing a work book (clause 36 of the Rules for maintaining and storing work books, producing work book forms and providing employers with them).

Meanwhile, refusal to hire due to lack of a work book is illegal. In any case, it is not determined by the employee’s business qualities (Article 62 of the Labor Code of the Russian Federation, paragraph 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2). True, on the basis of Article 65 of the Labor Code, a person applying for work presents the employer with a work book (except in cases where an employment contract is concluded for the first time or the employee enters work on a part-time basis). But if a person applying for work does not have a work book due to its loss, damage or for any other reason, the employer is obliged, upon a written application from this person (indicating the reason for the absence of a work book), to issue a new work book. This norm confirms that the absence of a work record does not prevent employment.

Submitting a resignation letter to your employer

At least once in his life, a working citizen has to quit his job. If this moment has come, the first thing you need to do is write an appropriate letter of resignation. The application itself is written in any form addressed to the head of the organization.

The application should indicate:

Full name of the head of the organization to whom the employee is addressing;
the date from which the employee asks to be dismissed;
reason or basis for dismissal.

As you know, if an employee resigns on his own initiative, then he is obliged to notify the employer of this fact 14 days in advance. This period will begin to expire on the day following the submission of the application. Moreover, in the application itself, the employee must indicate the date of his dismissal, otherwise it may be interpreted by the management of the enterprise as invalid, and it will have to be submitted again. True, the legislator provided for the possibility of dismissing an employee at an earlier date.

For example:

the employee moves to a new area or place of residence;
employee retirement;
enrollment in full-time study at one of the educational institutions.

In this option, the administration is obliged to terminate the employment within the time period specified to the employees. Of course, in justifying his demands for a shorter dismissal period, the employee must provide relevant evidence and not be unfounded.

How to pick it up yourself

Application for issuance of a work book

You can also pick up your work book yourself. To do this, you need to fill out an application for the issuance of a work book. It will help protect yourself from illegal actions on the part of the company’s management. It is necessary to find out the contact details of the employer and voice requests for the issuance of a work book.

The application should be made on A4 paper. You can type or write by hand. Since there is no established form for such a document, the application is written in any form or according to the model of the organization where the employee is registered. At the end the signature of the compiler and the date must be placed.

But situations often arise when the employer is stubborn and does not want to give up the work book under any pretext. If they don’t give you your work book, what should you do in the situation described above? You will have to file an application with the labor inspectorate or court.

Actions of the employee before dismissal

After submitting an application for dismissal from work, the employee, in preparation for the day of dismissal, must hand over previously received material assets that were transferred to him by the employer to perform his job duties. In addition, if an employee changes his mind about quitting his job, he has the right to withdraw his resignation letter. However, this employee can still be fired if another employee has already been invited to replace him (in writing), and who cannot be denied employment - Article 80 of the Labor Code of the Russian Federation.

Current issues

Does an employer have the right not to hand over a work book without a bypass sheet?

According to the legislation in force in the Russian Federation, the boss is obliged to return the citizen’s document (in this case, a book) even if there is no bypass sheet. Labor legislation does not regulate the mandatory presence of a bypass sheet.

The employer did not return the book, did not make the payment and disappeared. What to do?

In order to solve this problem, a person must first contact Rostrud with a complaint and indicate a violation of his rights.

If the situation cannot be resolved, you should file a claim directly with the court.

The employer has not officially registered the employee, and does not issue the employment certificate. What to do?

In this case, it is necessary to contact law enforcement agencies. This is a serious offence. It is worth noting that there is no specific rule in the legislation that can regulate the procedure in this case.

The boss doesn’t return the work book and doesn’t fire me – what should I do?

This case is a violation of the employee's rights. There are two ways to get out of the situation:

Hold the head of the organization accountable. The involvement will take place in accordance with the Code of Administrative Offenses of the Russian Federation, namely, under Article 5.27. According to the law, the organization will pay a fine.
File a claim with the court asking to recover funds from the organization. The resigning person also has the right to compensation for moral damage.

Is the new work book legal?

You can get a new work book, but there must be a reason for this. In case of its loss, a statement is written addressed to the new boss, after which this possibility is confirmed and a new book is opened. If a person indicates false reasons for creating a new document, then he faces several types of liability (disciplinary - dismissal, administrative - fine, or, in extreme cases, criminal).

Where can I restore my employment?

The work record is restored at the current workplace through an application from the employee. A new document is approved within 15 days. It is noteworthy that after accepting the application, the boss sends a request for data to the previous workplace.

Behavior on the day of dismissal

On the day of dismissal, the employee must develop a specific behavior strategy for himself. First of all, already at the beginning of the last working day, you need to contact the manager directly, or the personnel service and accounting department to clarify the time of receipt of the work book and other documents, if they were requested by the employee before dismissal.

And also the time of receipt of cash settlement with him. If receipt of the book and financial settlement is refused on this day, then it is necessary to write an application (2 copies) demanding the issuance of the specified documents and payment. In this case, you should insist on registering your application in the journal of incoming correspondence, and on the second copy - sign for receipt of this application indicating the date. This will give you the opportunity in the future to motivate your demands in the labor inspectorate or in court.

Reasons for refusal

According to the Labor Code of the Russian Federation, each employer, after terminating an employment contract with an employee, is obliged to hand over the appropriate form to him. Moreover, he must do this directly on the day of the employee’s dismissal. That is why delay or refusal to provide the form is considered a violation of the law. However, many organizations are reluctant to comply with this rule. As a rule, violation of the deadlines for issuing a work permit can occur for two reasons:

Due to the management's fault. An employer may deliberately not provide you with a document due to personal interests. For example, if you did not complete an inventory or did not complete any work before leaving;
Due to the employee's fault. An employee may simply not show up to collect his work book - then it is not the manager’s fault. In addition, he may, for some reason, refuse to receive documents.

If the employee himself is not interested in receiving a work permit, the employer must notify him of the need to issue documents in writing. The further course of action depends on the subordinate himself: he can either come for the documents in person or demand that they be sent by mail. If there was no response from the employee, but subsequently he nevertheless turned to his superiors for the form, it should be provided to him within 3 working days.

Bringing the employer to administrative liability

The responsibility of the head of the enterprise for violation of labor law is regulated by Art. 5.27 Code of Administrative Offenses of the Russian Federation. Usually, the issue of bringing to justice is decided by inspectors of the legal inspection or labor protection inspection upon receipt of applications from citizens whose labor rights have been violated, or during scheduled inspections.

And often precisely because of violations of workers’ rights, such as failure to issue work books on the day of dismissal, or failure to pay wages on that day. To employers who are liable under Art. 5.27 Code of Administrative Offenses of the Russian Federation, include:

an official of a specific enterprise;
legal entity as a whole;
individual entrepreneurs who hired citizens under the terms of an employment contract.

Article 5.27 provides not only for the imposition of a monetary fine on the employer, but also for the possibility of disqualifying such an official for up to 3 years if this manager has already been punished for a similar offense in the field of labor protection.

Compensation for moral damages for late issuance of a work book.

The amount of compensation for moral damage is determined by the court based on the specific circumstances of each case, taking into account the volume and nature of moral or physical suffering caused to the employee, the degree of guilt of the employer, other noteworthy circumstances, as well as the requirements of reasonableness and fairness (Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation). You should not count on a large amount; in general, compensation for moral damage does not exceed 5,000 rubles.

According to Art. 237 of the Labor Code of the Russian Federation, moral damage caused to an employee by unlawful actions or inaction of the employer is compensated to the employee in cash in amounts 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.

In this case, a violation of the employee’s labor rights is obvious. Due to the fault of the employer due to the late issuance of the work book, the employee cannot find a job. According to Articles 65 and 66 of the Labor Code of the Russian Federation, the work book is the main document about the employee’s work activity and length of service, the need for presentation of which by a person applying for work is provided for when concluding an employment contract.

Going to court

If an employee believes that his former employer violated his rights regarding the deadlines for issuing a work book and did not make the final payment of wages, then he has the right to apply to a judicial authority to protect his rights. Including the recovery of moral damages.

It should be taken into account that the employee is exempt from paying court costs, including state fees (393 Article of the Labor Code of the Russian Federation). Considering the importance of this category of cases, since 2008, labor dispute cases have been removed from the records of magistrates and again transferred to the jurisdiction of district courts for consideration at first instance (Article 24 of the Code of Civil Procedure of the Russian Federation).

What responsibility does the employer bear for the untimely transfer of the work book?

Failure to fulfill the obligation to timely issue a work book entails the application of financial liability measures to the employer.

According to Part 4 of 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. Such an obligation, in particular, arises if earnings are not received as a result of the employer’s delay in issuing a work book to the employee. A similar position is contained in paragraph 35 of the “Rules for maintaining and storing work records, producing work record forms and providing them to employers,” approved by Decree of the Government of the Russian Federation No. 225 of April 16, 2003.

The day of dismissal (termination of the employment contract) in the event of a delay in the issuance of the work book is considered the day of its issuance. 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 considered invalid (clause 35 of the above Rules).

Deadline for going to court

When going to court, a citizen must proceed not from the generally established procedural deadlines provided by the procedural code, but from the deadlines specified in Art. 392. Labor Code of the Russian Federation, namely:

3 months from the date of actual violation of labor rights provided for by the Labor Code of the Russian Federation;
1 month from the date of dismissal and receipt of the relevant documents for matters related to dismissal.

As can be seen from the above publication, the issue of bringing to justice an employer who, through his actions, violates the rights of employees, including not issuing a work book and salary payment in a timely manner, is well developed by law.

The former employee has the right and opportunity not only to return his documents and wages, but also to recover moral damages from his former employer. In addition, an employee’s application to the labor inspection body may serve as the basis for bringing an unscrupulous employer to administrative liability.

How to calculate unearned earnings?

The earnings not received will be equal to the average salary of the employee. For all cases of determining the amount of average wages, a single procedure for calculating it is established (Article 139 of the Labor Code of the Russian Federation, Regulations on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922). First, you need to count the number of working days that have passed from the day of dismissal to the day the work book is issued. And calculate your average daily earnings. An employee's average earnings are determined by multiplying the average daily earnings by the number of days in the payable period.

It is worth noting that to calculate average earnings, it is necessary to take into account not only the salary, but also all types of payments provided for by the remuneration system, applied by the relevant employer, regardless of the sources of these payments (Article 139 of the Labor Code of the Russian Federation). These include: bonuses for professional skills, class, length of service, combination, regional coefficient and more.

When filing a claim, the applicant must attach a calculation of the average earnings not received. If the employer does not challenge the calculation, and the court recognizes it as correct, then the specified amount, if there are grounds, will be recovered by the court.