Returning a work record book to a resigned employee is mandatory. This procedure takes place on the worker’s last working day. If necessary, the document can be sent by mail.
However, situations when an employer does not give a former employee a work book do occur. For these cases, a certain procedure is provided.
If we rely on Art. 84 of the Labor Code of the Russian Federation, a refusal to return to an employee his document with all due entries is unlawful. This action deprives him of the opportunity to further work. In this case, the worker has the right to count on some monetary compensation. The work book is also returned to the owner.
Company obligations
The enterprise where the resigned citizen previously worked is also responsible for retaining his employment document. This is evidenced by the Code of the Russian Federation on Administrative Offenses (Article 5.27). The legislation regulates the amount of penalties that are imposed on the organization.
The issuance of documents to the employee along with the payment is required on the last working day. This rule is not affected by the following facts:
- The employee did not prepare a bypass sheet.
- The employee did not hand over clothing or material assets to an authorized person.
- Damage was caused to the enterprise where the employee was financially responsible.
The desire of the former employer not to return documents based on any of the above reasons is also unlawful.
Legislative regulations on the work book
The sample work book is legally established. The rules according to which work books are maintained, stored and issued are regulated by federal executive authorities, which are authorized to do so by the Government of the Russian Federation.
The legislative basis for handling work books is contained in the following acts:
- Decree of the Government of the Russian Federation dated April 16, 2003 No. 225 “On work books” contains the rules for maintaining and storing this document, as well as samples of the necessary forms, features of their production and distribution among employers;
- Art. 66 of the Labor Code of the Russian Federation prescribes the use of the above-mentioned Rules No. 255 to resolve issues related to work books;
- Art. 65 of the Labor Code of the Russian Federation speaks of the obligatory presence of a labor contract for concluding an agreement between an employee and an employer;
- Art. 80 of the Labor Code of the Russian Federation, dedicated to the issues of dismissal at the request of the employee, directly contains the rule on the issuance of employment and other documents related to his work on the last day in the service of the resigning employee upon presentation of a written application by the latter;
- Art. 140 of the Labor Code of the Russian Federation insists on the need for final settlement with the employee on the day of his dismissal, including regarding documents belonging to him, including the work book;
- Art. 234 covers the responsibility of the employer in the event of a violation of the employee’s right to new employment, which is impossible without a work book, if it was not issued to the dismissed person on time, and Art. 237 speaks of the possibility of compensation for moral damage for such a violation.
What measures to take
So, you need to figure out what to do if the employer withholds documents. When an organization does not hand over a work book due to the forgetfulness of management, it is worth reminding the latter about this. The most correct way is to give written notice to the responsible employee (for example, the human resources department).
You can also notify the organization about a mistake by mail. The main thing is not to forget to indicate your contact phone number. You should also indicate a possible method for returning the document.
When must an employer return labor upon dismissal?
In any case, the work must be handed over to the employee; the only question is in what order these actions will be performed.
It all starts with the employer’s order, since it is the reason for entering a dismissal record into the employment record. The employee is familiarized with this order separately.
It is recommended to request a copy of the order, as it will be useful when filing a complaint.
Only after this the work permit is issued . Separately, after receiving it, the employee will need to sign both the personal card and the logbook.
Delay of a work book is recognized as legal only in two cases:
- The document cannot be issued on time due to the absence of an employee.
- The employee intentionally refuses to receive the document.
In this case, the employer can relieve itself of responsibility if it sends the employee a message informing him of the need to come for a work book or to provide permission to send a document by postal service (Resolution No. 225). Postal transmission will be illegal in the absence of consent.
Did your employer notify you of the need to pick up your work book?
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No
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An employee’s request to send a document by mail can be formalized separately in the manner prescribed by Part 6 of Article 84.1 of the Labor Code. After a written request, the employee is required to forward the requested work permit. three working days for this .
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If the employer does not want to give the work report, or enters inappropriate or incorrect information into it, he will need to compensate the employee for the entire period of delay for the wages not given to him (Resolution No. 225). This is due to the fact that the day the specialist is paid will be considered the day when he was issued the work certificate (including with any adjustments made). The new day of dismissal is also subject to entry into the labor report.
What to do next
Often workers do not know where to turn for help. If the employer does not give the work book, the most correct solution is to complain to the labor inspection department. However, you can also achieve recognition of your innocence through the court.
Rostrud
Often, an appeal from one of the workers ends with a full inspection of the entire enterprise. This fact explains the reluctance of employers to prolong conflicts with subordinates. Moreover, the opportunity for an employee to contact regulatory authorities perfectly motivates management to timely resolve all controversial situations.
But even without workers filing, the labor inspectorate regularly checks employers’ compliance with the labor code.
The detection of any violations entails administrative liability (according to the Administrative Code). The management is also obliged to pay a fine, the amount of which reaches 5 thousand rubles.
What to do if the employer who does not hand over the work book is an individual entrepreneur? He will also have to pay a fine for violating workers' rights. But the company itself can be fined by the inspector for an impressive amount (30-50 thousand rubles).
Important: in addition to paying penalties, the employer must get rid of all identified violations. Otherwise, another punishment in monetary terms will not be long in coming. Only now the amount of the second fine is measured by a tenfold increase in the first one.
In addition to the listed sanctions, officials may be removed from their positions for 3 years.
Court
Refusal to return documents is equated by law to depriving a citizen of further opportunity to work. This means the organization violates administrative and labor laws.
In this case, the Labor Code of the Russian Federation obliges the former employer to pay monetary compensation to the resigned employee. The calculation takes into account all days during which the worker did not have work. This fact is fundamental when filing a lawsuit.
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.
Filing a claim
There are many details to consider when submitting your application. It is mandatory to describe all the nuances of the situation and mention the legal acts of the Labor Code. Calculations of the damage caused should be made, as well as a list of attached documents.
The following information will be required from the plaintiff:
- Job description.
- A copy of the employment agreement.
- Information about enrollment and termination of the contract (orders, statements).
- Refusal of the former employer to return a document drawn up in writing.
The plaintiff will be required to sign their statement.
When to start proceedings
You can go to court due to a violation of the Labor Code of the Russian Federation after a certain period has passed. After dismissal and the issuance of documents, the employee has a month to do this, and if his labor rights are violated - 90 days. This is stated in Art. 392 Labor Code of the Russian Federation.
Nuances
You should not count on payment of compensation if the dismissal was due to the fault of the employee (for example, due to a violation of discipline accepted by law).
There are cases of people being laid off deliberately concealing their work records. This happens if the worker wants to mislead the court and receive financial benefits.
The employer can prevent such an outcome if he returns all documents against signature.
Who can receive a work book for a deceased employee?
Termination of an employment contract on such a sad occasion as the death of an employee has its own characteristics in terms of the rules for issuing a work book upon dismissal. Under such circumstances, the employee himself cannot objectively obtain it. Consequently, it is issued within 3 working days from the moment his closest relative applies for it.
Also, one of the relatives can give written consent to send the document by mail to the address they indicated.
In the work book, in columns 12 and 13, a note is made about the provision of the book.
The identity of the recipient and the degree of relationship must be documented. The evidence can be a passport, marriage certificate, birth certificate, etc.
A different outcome
Sometimes the employer hides from returning the work and paying the imposed fine. This is often done by individual entrepreneurs, for whom it is not difficult to stop their activities. A similar situation arises with the complete liquidation of an enterprise.
In this case, the dismissed person will have to open a new work book. You can confirm his experience by contacting the Pension Fund. Sometimes employers are disingenuous and do not formally register their colleagues. The employee is unlikely to be able to prove his case through court proceedings.
The best way out of such a situation is to peacefully resolve the conflict. If they still don’t hand over the labor certificate, Rostrud should be involved.
Almost always, the responsibility for retaining any documents of dismissed employees falls on the shoulders of immediate management. To avoid unscheduled inspections and penalties, employers often agree to an amicable solution to the issue.
