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The employer does not give a work record, what should I do? We act according to law

The non-issuance of a work record at dismissal is a gross violation of the legal rights of an employee. But few people know that an employee can not only bring a former leader to justice, but also receive moral and material compensation from an unscrupulous employer.

Often the reason that the dismissed employee has not received this document on time is that not only the negligence of staff members, but also the tensions with the manager. Attempting to harm or manipulate an employee while retaining one of the main labor documents leads to especially unpleasant consequences if the lay-off does not simply leave, but plans to get a new job in the near future.

In most cases, finding out the relationship with the former leadership, asking for or making a scandal is pointless, all this can only worsen the situation. It is quite possible to protect oneself by keeping calm and acting in accordance with the laws on labor. Where should the dismissed employee go? What do you need to do if the employer does not give the work book after dismissal? What should I do to compensate myself for the losses associated with these wrongful acts?

Obligation to issue a work book to the employee being dismissed. When does the 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 record no later than on the last day of work, which will also be the employee's dismissal day. The work book, as well as other documents that confirm the information about the work activity, are issued personally to the employee. In exceptional circumstances, for example, if a former employee is convicted and is at the place of serving a sentence, his relatives can get a work book by proxy.

But if under any pretext the employer does not give the work book, what to do first? Having received a refusal to issue this document, the dismissed employee has the right the same day to give the employer representative or the personnel department a written request (application) for the issuance of the work book after the dismissal. The time for consideration of such an application is three days, during which the employer is obliged to satisfy the lawful demand of the employee, issuing to the hands of the dismissed work book.

Conflict resolution of the situation can be greatly facilitated by the trade union organization, if any. A representative of a trade union committee can not only clarify the rights to an employee or help draw up a written appeal, but also mediate negotiations between the dismissed employee (a group of employees) and representatives of the employer.

Statement (reference to the employer): how to write?

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

  • Name and contact details of the originator of the application (employee).
  • The requirement to issue to the applicant the work record card in connection with the dismissal personally on hands.
  • Date of preparation of the appeal.
  • Signature and transcript of the applicant's signature.

If, for any reason, the employee is unable to appear later in person for his work record, you can agree to the application for sending the document by post. In agreement, you must specify the address to which the work record booklet of the dismissed employee should be sent.

The application or written request should be made in two copies, one of them is transferred to the employer. On the second copy the representative of the employer puts a note on receipt of the application with his signature, this document is kept by the employee. If the employer representative refuses to accept the application or leave a signature on the second copy, the written request should be sent to the employer's organization with a registered letter.

Of course, if the non-assignment of the labor book by the employer was the result of a mistake in the work of the personnel service, the usual written appeal will be enough to correct the situation. Another thing, if you keep your documents, the employer deliberately prevents the employment of the former employee. In such a situation, it will not be possible to solve the problem without resorting to the monitoring bodies or to the court. What should a worker do if they do not give out a work book intentionally?

Application to the Department of Inspection of Labor and Employment. What consequences will the treatment have in Rostrud?

If they do not give the work book or refuse to send the document by mail, the next step of the employee will be to contact the territorial branch of the labor inspection (Rostruda). An employee who is deprived of the opportunity to work and earn money may write to the head of the local branch of Rostrud a complaint (application) on the failure to issue a work record book with a request to inspect and bring the former employer to administrative responsibility.

An application to the Labor Inspectorate shall be made in writing in duplicate or filled out in a special section of the Rostrud website via the Internet. The statement will require detailed information on the following:

  • Information about the employer: name, taxpayer identification number, OGRN of organization, legal and actual address, name And the position of leader.
  • Periods of work and position of the applicant, date of dismissal.
  • An offense against which verification should be made, with reference to the articles of the LC RF. In the case under consideration, this is the retention of the work book by the employer after the termination of the employment contract with the citizen.
  • Please take measures: to conduct an audit of Rostrud, to involve the former manager in administrative responsibility, to oblige the personnel service to return the dismissed citizen to the work record card.
  • 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 of a labor inspector to an organization, then it will be checked not only the fact of undue retention of the work book, but all the activities of the employer within the competence of Rostrud. Based on the results of the check, the employer will receive a warrant indicating all the violations found in the organization and the time frame for their correction. Including the period, released for the issuance of all the required documents to the dismissed employee.

Simultaneously with the application to the Labor and Employment Inspectorate, the former employee has the right to file a written complaint against unlawful actions to the prosecutor's office at the location of the former employer. In this case, in the event of violation of the law in the part of labor rights, a prosecutor's inspection will also be conducted.

The administrative responsibility of the employer. Penalties, sanctions

Failure to comply with the issued order, including violation of the deadline for issuing to the hands or the timely registration of the work record card, gives the Federal Labor Inspectorate and Employment the right to bring the employer who violated the law to administrative responsibility. Penalty for non-extradition of a work record card upon dismissal for a legal entity may be from 30 to 50 thousand rubles. An official, that is, a manager, or an individual entrepreneur who did not issue a work record on time, may receive a penalty in the form of a disqualification for up to three years or a fine of 1,000 to 5,000 rubles.

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

How to oblige a former employer to issue a work record through a court

How else can you act if you do not give a work book? Apply to the court. With the appeal to the court should not be delayed. The limitation period for the fact that the work book and other documents are not released on the day of dismissal is limited to 3 months from the date of the termination of the employment contract.

The trial is the most common and effective way to restore the violated rights, if the employer does not give the work book. What should I do to enforce a former chief to issue a completed work book in court?

To begin with, the employee needs to 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.
  • Information about the employer.
  • An offense committed against the applicant, with reference to the articles of the LC RF.
  • The applicant's request: issue a work book, make changes to existing records and so on. In the statement of claim for non-recognition of the work record, moral compensation and compensation for pecuniary damage, if any, are also made.
  • Applications: copies of supporting documents.

A copy of the statement of claim is submitted for signature or sent with a registered letter to the respondent, ie the employer.

Moral compensation to the employee

Compensation for non-pecuniary damage, which the former head caused by his actions, is made in the manner established by Art. 237 of the Labor Code of the Russian Federation. The amount of payment for moral damage to the dismissed employee is established by the court, taking into account all circumstances of violation of laws and labor rights committed by the former employer.

Material compensation to the employee

The failure (retention) of the work record book on previous work deprives the citizen of the opportunity to find a new job or apply for temporary support to the Employment Center. Thus, the employee remains without the opportunity to receive unemployment benefits or wages. What to do? Do not give up a work record 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 work because of the former employer. For each day of forced inaction, the court will oblige the employee to pay compensation in the amount of not less than the average earnings in the organization of the former employer.

Experience and date 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 kept by an unscrupulous employer. Day of dismissal will be recognized as the day when the employee was actually given a work book and other documents confirming information about work and work experience. After the entry into force of the court decision, the employer must:

  • Issue an order to restore a laid-off employee at work, in a position he held at the time of dismissal.
  • Write an entry in the work record book of the reinstated employee on the recognition of an invalid previously made record of termination of the employment contract with the employee.
  • Issue a new dismissal order, dated the day of issue of the work book.
  • Enter the appropriate entry in the work record book.

Important! Restoration in the post does not entail the duty of the employee to work through this period.

Circumstances and measures that exclude the responsibility of the employer

But is the law always on the side of the worker? The failure to issue a work book on the day of dismissal does not entail responsibility for the employer, if the manager (representative) of the organization did not have the opportunity to transfer the document in time to the employee, but he took all necessary measures.

Perhaps the most common situation is when an employer does not give a work record through no fault of his own - the absence of a staff member on the last day of work or a shift (the day of dismissal). The reasons for this may be absenteeism, temporary incapacity for work, leave with subsequent dismissal and other circumstances. The employer can take the following measures:

  • Draw up an act confirming the absence on this day of work of the dismissed employee with the entry of an appropriate mark in the time sheet.
  • Timely send a letter to the employee with an official notification of the need to appear personally for the receipt of the work book. As a rule, such a document is sent by registered mail at the place of registration (registration) of the employee, as well as at all addresses of the employee that are known to the employer. From the date of sending from the employer, the responsibility for the late issuance of the document is removed.

In the situation where the non-delivery of the work record book upon dismissal was due to a refusal to obtain the document, the employer in accordance with the law should act as follows:

  • On the day of dismissal an act is prepared on the refusal of a citizen to obtain a work book. With the certificate, the employee must be acquainted with the signature.
  • Ensure the storage of an unclaimed work record card until handover to the employee in person or for 75 years from the date of dismissal.

Where to restore labor?

But there are very complicated cases. For example, the employer does not give the work book, and the organization in which the worker worked, ceases to exist, that is, liquidated. Difficulties arise if it is not possible to locate the former leader's location. Over time, find an unscrupulous employer and return a lost document can be. But for employment for a new job or calculating the length of service, the employee will need to issue and receive a duplicate of the work book. How to confirm the existing experience and who has the right to issue a duplicate document?

First of all, the employee will receive documents confirming the length of service, continuous and common. Such documents can be:

  • Information from the Social Insurance Fund and the Pension Fund department, confirming the existence of social contributions and pension contributions during these periods.
  • Inquiries, copies of personnel administrative documents (orders) from previous jobs, including information from archival organizations.

Based on the supporting documents, the duplicate records information about the employee's past work activity. Who has the right to issue such a duplicate? According to the currently existing Rules, for issuing a duplicate, the employee must apply with the application for the last place of work. But how to be, when exactly the last employer is guilty of losing the documents of his employee, and it is not possible to find him?

If the employee plans to work for a new place of work, the new employer has the right to register, issue a new work book and indicate information about the length of stay on the basis of supporting documents. In the new work book issued in return for the lost, the total experience of the previous work activity is summed up, but without specifying the periods of work, the designation of the positions of the employee and previous employers.

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