Labor is detained due to the absence of the director. The work book was issued with a delay. The obligation to issue a work book to a dismissed employee. When an employer violates

Labor book - a document that contains information about all labor activities. If the employee decided to change jobs, then the book should be handed over to him when he leaves the company, on the last day of work. If the employee takes a vacation and then leaves, then the work book is given to him on the last day of work before the upcoming vacation. But there are situations when the employer does not give the work book for various reasons or unreasonably delays its issuance. What to do in this case, how to get the document?

The employer does not give the work book, what should I do?

An employee can defend his rights:

apply to the state labor inspectorate or the prosecutor's office with a statement that he was not given a work book on the day of dismissal;
go to court with a claim against the employer company;
require your employer to issue a work book, warning that if the employer does not give the work book upon dismissal, the employee plans to contact the labor inspectorate or the prosecutor's office.

If the employer does not issue a work book, the employee can contact the above departments and require the employer to issue a work book by filling out an application for issuance work book... If the employer does not give the work book, it is advisable for the employee to fill out two copies of the application: transfer the first to the employer, and leave the second with a note from the employer that the application has been accepted (the application must be registration number, date when it was accepted, position, full name and signature of the employee who accepted the application). The employer may refuse to accept the application: in this case, it should be sent by registered mail with a list of attachments and a return receipt.

The employer's responsibility for the delay in issuing a work book

For the delay in the transfer of the work book to the employee, refusal to issue, the employer may be brought to administrative and material responsibility... Failure to issue a work book upon dismissal may result in a fine for the employer:

for an organization - in the amount of 30 thousand rubles - 50 thousand rubles;
for the head of an enterprise or entrepreneur, a fine can be in the amount of 1000 rubles, but not more than 5000 rubles.

If the employer has not been noticed for the first time in committing such a violation, then the fine for not issuing a work book will be greater:

for an organization, a fine can range from 50 thousand rubles to 70 thousand rubles;
Failure to issue a work book can threaten the head of the company with a fine ranging from 10 thousand rubles - 20 thousand rubles or disqualification for up to three years (but not less than a year);
for an entrepreneur, the fine can be up to 20 thousand rubles (but not less than 10 thousand rubles).

For companies that belong to small and medium-sized businesses, special liability is provided for not issuing a work record book upon dismissal - instead of a fine, a warning may be issued. This is possible if this violation was committed for the first time, no harm has been caused and no threat to life has arisen, there is no property damage.

A court or state labor inspectors have the right to admit guilt, as well as to prosecute, if a planned or unscheduled check employer.

Compensation for delayed work book

In addition to administrative liability for the violating employer, financial liability is also provided: a delay in issuing a work book can be recognized as depriving a citizen of the opportunity to earn, and as a result, depriving him of income. As a rule, such a decision is made by the court when an employee applies with a claim to a company - an employer, if he is not given a work book upon dismissal. In this case, the employer will have to compensate the employee for the income for the entire time that he did not have a work book, since all this time the employee was illegally deprived of the opportunity to work. Compensation for the failure to issue a work book should be set in the amount of "lost" income for the entire time that the employee was forced not to work.

When dismissing under an employment contract without a work book, no mark is put in the book. This is possible in certain cases: if the place of work is not the main one for the employee, the employee works remotely or the employee's employer is an individual.

Failure to issue a work book upon dismissal

In certain cases, the employer may be exempted from liability for failure to issue or delay in issuing a work book. Often it is the employees who ask the question "the employer does not give the work book, what should I do?" But what should the employer do if the employee, for some reason, did not come to work, and there is no opportunity to give him the book, or he refuses to take the work book? The employer is obliged to issue a work book, and in this case he has to look for ways to solve the problem.

If such a situation takes place, the employer should send the employee a notification that he must personally come for the document or notify of his consent to receive the document by mail. On the day the employer sends this notice, he is released from liability for the delay in the work record book upon dismissal.

Good afternoon, besides - you can recover compensation in court -
a quote from a court decision -

“V.A. on the day of dismissal “Date” the work book was not issued. Moreover, according to the book of accounting of work books and inserts in them, the work book of V.A. not issued to date. In addition, the notification about the need to appear for the receipt of the work book was sent to him only "Date". In accordance with article 66 of the Labor Code Russian Federation employment history established sample is the main document on the labor activity and seniority of the employee. The procedure for maintaining and storing work books, as well as the procedure for producing forms for work books and providing employers with them are established by the federal executive body authorized by the Government of the Russian Federation. According to Article 84.1 of the Labor Code of the Russian Federation, on the day of termination of the employment contract, the employer is obliged to pay the employee a work book. An entry in the work book about the basis and the reason for the termination of the employment contract must be made in strict accordance with the wording of this Code or other federal law and with reference to the relevant article, part of the article, paragraph of the article of this Code or other federal law. In the event that 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 must send the employee a notice of the need to appear for the work book or agree to send it by mail. From the day the specified notification is sent, the employer is released from liability for the delay in issuing a work book in cases of discrepancy last day work with the day of registration of the termination of labor relations upon the dismissal of an employee on the grounds provided for in subparagraph "a" of paragraph 6 of part one of Article 81 or paragraph 4 of part one of Article 83 of this Code, and upon the dismissal of a woman, the term of the employment contract with which was extended until the end of pregnancy in accordance with part two of Article 261 of this Code. At the written request of an employee who did not receive a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee's request. According to Article 165 of the Labor Code of the Russian Federation, in addition to general guarantees and compensations, workers are provided with guarantees and compensations, in particular, in connection with the delay through the fault of the employer in issuing a work book when an employee is dismissed. A similar provision is enshrined in Article 234 of the Labor Code of the Russian Federation that the employer is obliged to reimburse the employee for the earnings not received by him in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, occurs if the earnings are not received as a result of the employer's delay in issuing the work book to the employee. Thus, “NN” is obliged to accrue and pay to V.A. compensation due to the delay due to the fault of the employer in the issuance of a work book upon dismissal of an employee based on the average monthly wages with "Date". By virtue of Article 139 of the Labor Code of the Russian Federation, for all cases of determining the size of the average wage (average earnings) provided for by this Code, it is established uniform order her calculus. To calculate the average wage, all types of payments provided for by the remuneration system are taken into account, which are applied by the respective employer, regardless of the sources of these payments. In any mode of work, the average wage of an employee is calculated based on the actually accrued wages and hours actually worked by him for 12 calendar months preceding the period during which the employee retains the average wage. ...

Upon dismissal of an employee, the employer is obliged to issue him a work book on the last day of work. All entries in it must have already been done. But situations when the employer violates the established norms and, for whatever reason, does not give the document, are not uncommon. Is the employer responsible for this, and which one? This is discussed below.

Important! In the case of sending by labor mail, it will be sent valuable letter, which provides an inventory of the content.

The employer's refusal to issue labor. What to do?

An employee who is deliberately not issued with labor in a timely manner must:

Possible actions	A comment
Write to the employer a request that he issue him a document	Send a notification email. This will serve as a significant argument in court.
Apply to labor inspection with a description of the employer's actions	It is advisable to take when: - the employer ignores the request sent to him; - the employee is not able to contact the employer with a written statement
Write a complaint to the Prosecutor's Office of the Russian Federation
Go with statement of claim to court

Administrative responsibility of the employer for the delay in issuing the work book

If the fact of untimely issuance of labor is discovered, the employer will have to incur material costs. And it doesn't matter what the reason is for his failure to comply with the requirements of the law. Penalties are what will inevitably follow a violation labor standards... Their sizes are established by Art. 5.27 Administrative Code:

The amounts are transferred to the state treasury.

Important! The official of the organization, through whose fault the violation of the TC occurred, can get off with a warning if such a situation has occurred for the first time.

Responsibility for repeated violation

When the employer repeatedly committed the same violation, he will have to pay more (clause 2 of Art. 5.27 of the Administrative Code). The dimensions of responsibility are as follows:

Important! The manager will no longer get off with a warning. Cash payments can be replaced by disqualification for a considerable period - at least a year, maximum - 3.

Example. IP Molotov refused to issue a labor certificate to his salesman after his dismissal. Motivation - he did not provide an act on the write-off of products. Molotov appealed to the labor inspectorate. Experts found that the individual entrepreneur had already committed a similar violation and got off with a fine of 1,000 rubles. For repeated non-compliance with legal norms, 10 thousand rubles were imposed on him. a fine and ordered to return the document to Molotov within 3 days. Otherwise, the inspection will help the employee write a claim to the court.

Material liability to a dismissed employee

Untimely issuance of labor documents creates considerable difficulties for the dismissed employee. First of all, he cannot present a document to a new employer, which is a prerequisite when applying for a job. As a result, the employee will have to be left without a livelihood indefinitely. Do not forget about moral damage.

Therefore, it is quite fair that the employer, in addition to fines to the treasury for ignoring the instructions of the Labor Code, will have to make payments to the dismissed employee (Article 234 of the Labor Code). The amount of compensation is determined:

the amount of unreceived earnings for the period of time that passed from the moment of dismissal to the date of issuance of his labor to the employee;
moral damage to the dismissed employee.

Important! Negative consequences for the employer also occur when he did not send the notice described above to the dismissed one.

Several questions and answers

Question 1... An employee dismissed on his own initiative did not come for work. To avoid the fine, the employer decided to send him a notice. Is there a standard form for it?

Answer. The employer has the right to write a notice in any form. No unified form for such a document has been developed. It is only necessary to describe the situation in detail and offer the employee to pick up the labor in person or agree to the postage.

Question 2. Are there any time limits for filing a claim against a manager who refuses to issue a labor to a dismissed employee?

Answer. It is impossible to delay the appeal to the court, since the limitation period for such disputes is 3 months (Art. 392 of the Labor Code).

Ask an expert. Vetrov I.I. decided to go to court with a claim against the company, which does not return his labor after dismissal. What will he have to spend the money on?

Answer. Most cases regarding violations by the employer of the deadlines for issuing documents upon dismissal are resolved in favor of former employees. As a result, the employer reimburses the legal costs, consisting of the state duty and the costs associated with the consideration of the dispute. The employee will have to pay 200 rubles if he files a claim for compensation for moral damage. Moreover, his desired size doesn't matter. The former employee is exempt from paying the state duty.

Practicing lawyer K.T. Veresov

Each employer is obliged to master the basics of the Labor Code so as not to spend the money earned on paying fines. It is beneficial for the employer to comply with labor laws, especially regarding issues of dismissal of employees. At the slightest violation, they can apply not only to the labor inspectorate, but also to the court. Then the costs of the enterprise will increase significantly - they will be replenished with a new item "Shipping costs".

In most cases, the dismissal does not bear any negative consequences for the organization. However, sometimes problems and, as a result, losses appear where they are not expected. It turns out that even seemingly such a trifle as a delay in issuing a work book can be costly for an employer. Nikita Ukhtverov, senior partner, talks about this in more detail. law firm"Adlee".

Article 84.1 of the Labor Code of the Russian Federation establishes that on the day of termination of the employment contract, the employer must issue the employee a work book and make a full payment with him. In the event that, 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. From the day the specified notification is sent, the employer is released from liability for the delay in issuing a work book.

Article 234 of the Labor Code of the Russian Federation stipulates that the employer is obliged to reimburse the employee for the wages he has not received in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, occurs if earnings are lost as a result of the employer's delay in issuing a work book to the employee.

In practice, there are times when personnel service or the director of the organization forgets to give the employee his work book, and the employee does not receive it on purpose, hoping to receive some monetary compensation in the future.

The amount of monetary compensation is established by clause 35 of the Decree of the Government of the Russian Federation of 04/16/2003 N 225 "On work books" and states that if the employee is delayed in issuing a work book through the fault of the employer, the wrong or not in accordance with the law wording of the reason for the employee's dismissal is entered into the work book, the employer is obliged to reimburse the employee, not received by him for the entire period of delay, earnings. Moreover, the day of dismissal (termination of the employment contract) in this case is the day of issue of the work book.

Thus, the legislation links the possibility of the employer's material liability to the employee for the delay in issuing a work book with the employer's guilty behavior.

Analyzing the jurisprudence of the courts of general jurisdiction, the following conclusions can be drawn that will help the parties to win the litigation. Firstly, the employer is relieved of responsibility from the moment the employee is notified, if he is unable to issue a work book on the day of dismissal (Appeal ruling of the Primorsky Regional Court of 11/14/2017 in case N 33-11310 / 2017).

Second, employment former employee in a new place, terminates the course of the period for which it must be paid financial compensation due to the fact that the employee is no longer deprived of the opportunity to work. (Appellate ruling of the Krasnodar Regional Court dated 08.13.2015 in case N 33-18612 / 2015).

Thirdly, the issuance of a duplicate work book does not entail a violation of the employee's rights, unless the employee proves that after dismissal he tried to find a job with another employer and was refused employment due to improper execution of a duplicate work book. (Appellate ruling of the Moscow City Court of 20.11.2017 in case N 33-46016 / 2017).

Fourthly, the delay in issuing a work book is not a continuing offense (Appellate ruling of the St. Petersburg City Court of February 20, 2018 N 33-3932 / 2018 in case N 2-2610 / 2017). Provided by art. 392 Labor Code RF, the three-month period for an employee to go to court to protect his rights begins to run from the day when the employee learned or should have learned about the violation of his right - approx. in most cases, this day is the day of termination of the employment contract -(Appeal ruling of the Samara Regional Court dated December 26, 2017 in case No. 33-16599 / 2017).

Labor book - a form of the established form containing data on the places of employment of the employee. The document is presented upon employment and is to be issued upon dismissal. The document flow procedure is established in the Labor Code of the Russian Federation.

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Timing

In most cases, the date of termination of the employment contract is also the last working day on which the settlement and issuance of documents is made.

The work book is issued on the day of termination of the contract concluded with the employer. An exception is the case when the dismissed person did not actually work, but the average earnings remain for him.

The employee has the right to apply to the employer with a request to provide leave from subsequent dismissal in the presence of unused days paid rest.

The final working day is the date before the vacation. Issuance of documents and work book is carried out on the last working day preceding the vacation.

Order

The procedure for issuing a work book has the following procedure:

on the day, a personnel worker or any authorized person makes an entry in the work book. No entry is made before the day of termination of the employment contract. The employee has the opportunity to pick up the application and continue working duties until the day of dismissal;
face, leading journal accounting for the movement of work books, records the date of issue of the document. The employee must confirm receipt of the form with a personal signature. If there is no signature in the journal, it will be problematic to prove the issuance of the document, which will allow the employee to demand compensation for the forced downtime.

When making entries in the workbook accounting journal, mistakes, blots, erasures and the use of a proofreader are not allowed. If the personnel officer or employee makes an error, the text is crossed out, next to it, the correct entry is made, certified by the head.

When sending a work book by post in column 12 and 13 of the journal, the personnel worker makes a record of the number and date of departure.

In the course of work, the employee may need to supplement the book with an insert, which is also subject to registration in the journal. The dismissed employee additionally signs for the issuance of the insert.

Delay in issuing a work book upon dismissal

Issuance of a work book in violation of the term may arise for 2 reasons:

through the fault of the employer;
if the employee does not appear.

Employer who deprives a person of the lead labor activity as a result of the delay in issuing the book, bears financial responsibility (Labor Code of the Russian Federation).

The employee is subject to reinstatement with compensation for downtime days in the amount of average earnings.

The text in the work book is canceled, the date of issue of the document becomes the new day of dismissal. The basis for changing the date is the order for the enterprise.

The legislation provided for cases in the occurrence of which the employer is not responsible for violating the term for issuing a work book:

upon dismissal of an employee for failure to appear (absenteeism). On the day of termination of the contract, at the initiative of the employer, the truant may actually be absent from work (Labor Code of the Russian Federation);
in case of conviction of an employee, termination of labor relations and the impossibility of actual performance of duties (Labor Code of the Russian Federation);
when extending the period of validity of an employment contract with an employee who is expecting a child until the end of pregnancy (Labor Code of the Russian Federation).

When an employee is fired for various reasons (for staff redundancy, for violation labor discipline and others) there may be cases of employee refusal to receive a work book.

The employer or personnel employee invites the disinterested persons of the enterprise and members trade union organization to compile:

Act on refusal to receive a document.
Making an appropriate entry in the accounting journal.

The employer performs further actions in accordance with the scheme adopted for the case of an employee's absence. If there is no response to the invitation to receive a document, the work book continues to be stored at the enterprise.

Deportation will not take place without the employee's consent. Unclaimed books are disposed of after 75 years.

If the employee does not appear for the work book, a number of actions must be taken to prevent the employer's liability.

If it is impossible to issue a document:

The employer must send a written notification to the employee about the need to appear to receive the document. The letter is drawn up with a list of the attachment, notification of the attachment. The employer does not have the right to send the document before receiving the employee's order.
In case of receiving instructions from the employee to send the work book, the document must be sent to the address indicated by the dismissed person. The situation can arise during a sudden or forced departure, the execution of a judicial punishment.

The order from the employee to send the document is expressed in writing. An application form, a telegram with a signature certified by a postal worker is allowed.

Notification received from former employee, is filed together with the order of dismissal and the deadline for personnel forms for employment is kept - 75 years.

Special attention should be paid to the issue of sending a document outside the territory of the state. The legislation does not contain norms that allow sending a document abroad.

If the person has not received the work book on time, the form continues to be stored in the archive of the enterprise. The employer must comply with the procedure for notifying and sending the person an offer to appear for a document.

Potential problems and disputes

In case of violation of the employee's rights, he has the right to apply to the authorities protecting labor Relations... Institutions include: the State Labor Inspectorate, the Prosecutor's Office and the Court.

The statements from the employee must be supported by an evidentiary base - a copy or original of the letter of resignation with a note of acceptance, a letter demanding the issuance of a document and other papers indicating a violation.

Disputes related to the delay in issuing a work book by the employer are common in judicial practice.

The termination record is subject to change on the date of issue of the document, which does not always happen in practice.

If the employer refuses to change the date of dismissal, the procedure for determining the day is decided in court. The day of dismissal is the date of the court decision, the link to which is entered in the work book.

The change in the date is accompanied by material compensation for the days of downtime, but in the course of court proceedings, the employee has the right to ask for compensation for moral damage.

The amount of payment is influenced by the circumstances of the case:

the amount of physical and mental suffering inflicted on the employee;
individual characteristics of the injured person;
the amount of the employer's fault;
valid reasons that prompted the employer to delay the issuance of a work book.

The amount can be awarded by the court to the victim, regardless of material compensation. In the predominant number of court proceedings, the court awards compensation if there is a fact of delay in issuing a work book, but sometimes the fact of damage must be confirmed.

If the plaintiff does not prove that the late issuance of the document impeded employment and damage, compensation may be refused.

In case of confirmation of the employer's guilt for the late issuance of the document, the defendant pays:

legal costs for the services of a lawyer;
travel, accommodation of representatives and witnesses;
postage and other expenses.

If the issuance of the document is delayed, an administrative fine may be imposed on the enterprise and the head in accordance with the Code of Administrative Offenses.

A detailed study obliges the circumstances associated with the loss of the work book by the employer. The need to restore records lies with the enterprise.

Only personnel workers... At the new place of employment, they cannot refuse to hire, which will not entail compensation for the days of downtime by the former employer.

The person who suffered the damage has the right to compensation for expenses and non-pecuniary damage in court proceedings.

Situations related to the death of an employee require separate consideration. A work book with a corresponding entry is issued to the relatives of the deceased employee.

The issue is confirmed by the personal signature of the person. If there is a written order, the document is sent to the address indicated in the notification.

The relationship with the deceased worker will need to be confirmed. The legislation does not have an exact order of priority by relatives who are supposed to receive a document.

If no stakeholders can be found, the document continues to be in the organization. Employment books are not recycled.

An employee may have labor contract on an external part-time job when he takes up a vacant position. Termination of the concurrent employment agreement is not accompanied by the issuance of a work book.

The form is at the enterprise at the main place of work, only a copy is provided for the additional place of employment upon acceptance.

Is it possible to issue by proxy

The condition for issuing a work book by power of attorney is not enshrined in labor legislation. Regarding the workflow with the participation of a representative, it is necessary to be guided by the norms. The position is not supported by Rostrud, but has no legal implications.

The employer has the right to issue a document by power of attorney, subject to the following conditions:

The power of attorney must be notarized and have an up-to-date date. The validity period of the form is no more than 3 years, as indicated in the document. If there is no indication of the term, you can use the power of attorney within a year from the date of its issue.
In the power of attorney, it is necessary to indicate the specific right of the person to receive a work book, sign the issue.
The document must be confirmed with an identity card - a passport specified in the power of attorney. A copy is attached and subsequently kept by the organization.