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 the dismissed employee did not receive this document on time may be not only the negligence of personnel officers, but also tensions with the manager. An attempt to harm or manipulate an employee by holding one of the main labor documents leads to especially unpleasant consequences if the resignee does not just leave, but plans to get a new job in the near future.
In most cases, sorting out relations with the former leadership, asking or scandal is pointless, all this can only worsen the situation. It’s quite possible to protect yourself by staying calm and acting in accordance with labor laws. Where should the fired employee go? What should I do if the employer does not give the work book after leaving? What to do to compensate for the losses associated with these illegal actions?
Obligation to issue a work book to a dismissed employee. When does an employer violate labor rights?
The 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 the last day of work, which will also be the day the employee is fired. The work book, as well as other documents confirming the information on labor activity, are issued personally to the employee. In exceptional circumstances, for example, if the former employee is convicted and is in the place of serving the sentence, his relatives can receive the work book by proxy.
But if, under any pretext, the employer does not give the work book, what should be done first? Having received a refusal to issue this document, the dismissed employee has the right on the same day to transmit to the representative of the employer or to the personnel department a written appeal (application) to issue a work book after dismissal. The term for consideration of such an application is three days, during which the employer is obliged to satisfy the employee’s legal requirement by handing out the labor book to the resigning employee.
A trade union organization, if any, can contribute to a considerable degree to the conflict-free resolution of the situation. The representative of the trade union committee can not only clarify the rights of 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 standard sheet A4. It indicates the following information:
- Name and contact details of the preparer of the application (employee).
- The requirement to give the applicant a work book in connection with the dismissal in person.
- Date of the appeal.
- Signature and decryption of signature of the applicant.
If, for any reason, the employee cannot later personally appear for his work book, consent can be attached to the application to send the document by mail. The consent should indicate the address to which the labor book of the dismissed employee should be sent.
The application or written request should be made in duplicate, one of which is transmitted to the employer. On the second copy, the representative of the employer puts a note on the receipt of the application with his signature, the employee retains this document. If the representative of the employer 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 non-issuance of the work book by the employer was the result of an error in the work of the personnel service, the usual written request would be enough to correct the situation. Another thing is if, while holding documents, the employer deliberately hinders the employment of a former employee. In a similar situation, it will not work to solve the problem without contacting the regulatory authorities or the court. What should an employee do if they do not intentionally issue a work book?
Application to the office of the Inspectorate for Labor and Employment. What consequences will appeal to Rostrud have?
If you do not give the work book or refuse to send the document by mail, the next step for the employee will be to contact the territorial office of the labor inspectorate (Rostrud). An employee who is deprived of the opportunity to work and earn money may write to the head of the local department of Rostrud a complaint (statement) about the non-issuance of a work book with a request to conduct an audit and bring the former employer to administrative responsibility.
The application to the labor inspectorate is written in duplicate or filled out in a special section of the Rostrud website via the Internet. The statement will need to indicate in detail the following:
- Information about the employer: name, TIN, PSRN of the organization, legal and actual address, full name and the position of leader.
- Periods of work and position of the applicant, date of dismissal.
- An offense in respect of which an audit 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 retention of the employer by the employer after termination of the employment contract with the citizen.
- The request to take measures: to conduct an audit of Rostrud, bring the former manager to administrative responsibility, oblige the personnel service to return the dismissed citizen a work book.
- Copies of supporting documents, for example, an employment contract with the employer (inventory of the application and copies).
In addition, if you initiate a visit by the labor inspector to the organization, then not only the fact of the unlawful retention of the work book will be checked, but all the activities of the employer within the competence of Rostrud. Based on the results of the audit, the employer will be given an order indicating all the violations identified in the organization and the terms for their correction. Including the period allowed for the issuance of all required documents to the laid-off employee.
At the same time as a statement to the Labor and Employment Inspectorate, the former employee has the right to file a written complaint about unlawful actions with the prosecutor at the location of the former employer. In this case, a prosecutor’s check will also be carried out regarding a violation of the law in terms of labor rights.
The administrative responsibility of the employer. Fines, sanctions
Failure to comply with a precept issued, including violation of the terms for handing over or timely execution of a work book, gives the Federal Inspectorate for Labor and Employment the right to bring an employer who has violated the law to administrative responsibility. The penalty for non-issuance of a work book upon dismissal for a legal entity can be from 30 to 50 thousand rubles. An official, that is, a leader, or an individual entrepreneur who did not issue a work record on time, may be punished with disqualification for a term of up to three years or a fine of 1,000 to 5,000 rubles.
But if, despite the verification 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 in court
How else can you act if you do not give the work book? Go to court. With an appeal to the court should not be delayed. The limitation period on the fact of the non-issuance of the work book and other documents on the day of dismissal is limited to 3 months from the date of termination of the employment contract.
A lawsuit is the most common and effective way to restore violated rights if the employer does not give the work book. What to do to legally oblige a former boss to issue a completed work book?
To begin with, the employee must correctly draw up a statement of claim. You can write it yourself or ask for help in a legal consultation. The following information will be required:
- Information about the plaintiff (applicant).
- Periods of work and position of the applicant, date of dismissal.
- Information about the employer.
- An offense committed against the applicant, with reference to the articles of the Labor Code of the Russian Federation.
- The applicant's request: to issue a work book, to amend the existing records and so on. Claims for non-issuance of the work book also include requirements for moral compensation and compensation for material damage, if any.
- Attachments: copies of supporting documents.
A copy of the statement of claim is transferred under signature or sent with notification by registered letter to the defendant, that is, the employer.
Employee Compensation
Compensation for non-pecuniary damage caused by the actions of the former boss is made in the manner prescribed by Art. 237 of the Labor Code of the Russian Federation. The amount of compensation for moral damage to the 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.
Employee Compensation
Failure to issue (retain) a work book at a previous job deprives a citizen of the opportunity to find a new job or to apply for temporary support to the Employment Center. Thus, the employee is left without the opportunity to receive unemployment benefits or wages. What to do? Do not give away the work book or deliberately delay the issuance of this document? This is primarily an occasion to demand through the court compensation 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 inaction, the court will oblige the employee to pay compensation in the amount of at least the average earnings in the organization of the former employer.
Seniority and day of dismissal
Another violation of the rights of the dismissed employee concerns the length of service that the employee lost due to the fault of the former employer. By a court decision, an employee is reinstated at work for the entire period when the work book was with an unscrupulous employer. 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 must:
- Issue an order to reinstate a dismissed employee at work, in the position that he held at the time of dismissal.
- Make an entry in the workbook of the employee reinstated in the position on the invalidation of the previously made record of termination of the employment contract with the employee.
- Issue a new dismissal order dated the day the labor book was issued.
- Make a corresponding entry in the workbook.
Important! Restoration of the post does not entail the obligation of the employee to work out this period.
Circumstances and measures precluding liability of the employer
But is the law always on the side of the employee? Failure to issue the 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 deliver the document to the employee in time, but he took all the necessary measures.
Perhaps the most common situation where the employer does not give the work book through no fault of his own is the absence of the employee to be dismissed on the last day of work or a shift (day of dismissal). The reasons for this may be absenteeism, temporary disability, leave with subsequent dismissal, and other circumstances. The employer may take the following measures:
- To draw up an act confirming the absence on this day of the dismissed employee at the workplace with a corresponding mark in the time sheet.
- Timely send a letter to the employee with an official notice on the need to come in person to receive a work book. As a rule, such a document is sent by registered letter to the place of registration (registration) of the employee, as well as to all addresses of the employee that are known to the employer. From the day of sending, the employer is no longer liable for the late issuance of the document.
In a situation where the non-issuance of the work book upon dismissal occurred due to a refusal to receive a document, the employer in accordance with the law should act as follows:
- On the day of dismissal, an act is drawn up on the citizen's refusal to receive a work book. An employee must be familiarized with the act by signature.
- Ensure 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 to restore labor?
But there are quite difficult cases. For example, the employer does not give 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 leader. Over time, it may be possible to find an unscrupulous employer and return a lost document. But for employment in a new job or calculation of seniority, an employee will need to draw up and receive a duplicate work record. How to confirm an existing experience and who has the right to issue a duplicate of a document?
First of all, the employee will have to obtain documents confirming the existing experience, continuous and general. Such documents may include:
- Certificates from the Social Insurance Fund and the Pension Fund branch confirming the availability of social contributions and pension contributions during these periods.
- Inquiries, copies of personnel administrative documents (orders) from previous places of work, including information from archival organizations.
On the basis of supporting documents, information about the past work activity of the employee is entered in a duplicate. Who has the right to issue such a duplicate? According to the current Rules, an employee must apply for a duplicate at the last place of work. But what about when the last employer is guilty of losing the documents of his employee, and it is not possible to find him?
If an employee plans to find a job at a new place of work, then a new employer has the right to register, issue a new workbook and provide information about seniority based on supporting documents. In the new workbook, issued in return for the lost one, the total length of the previous work activity is entered in total, but without specifying the periods of work, indicating the positions of the employee and previous employers.