The company issued the work book to the employee late. Compensation for the delay in issuing a work book upon dismissal Violation of the deadlines for issuing a work book

In case of delayed dismissal work book encounters quite a lot of people. The dismissed person will be able to protect his rights if he knows whether such actions are legal and how to react in such situations.

Rules for issuing documents during settlement

Article 84 of the Labor Code of the Russian Federation.

Failure to issue a work book during dismissal is a violation of the employee’s rights. In accordance with Part 1 of Article 84 of the Labor Code of the Russian Federation, the employer must issue all documents on the day of dismissal. This rule is violated for the following reasons:

1. The employer blackmails the employee in order to obtain guarantees for the completion of unfinished work (transfer of cases, writing a report, etc.).
2. Display of irresponsibility by an employee of the personnel department preparing paperwork.
3. Ignorance of the Labor Code by the administration of the organization and the resigning employees themselves.
4. Absence of the resigning employee from the workplace for any reason (sick leave, vacation, absenteeism, joining the army, and so on).

The employer must control the final payment process. If a quitter is absent from work, a notification is sent to his registration address that all documents are ready and they need to be picked up, or an application to be sent by mail is sent to him.

What to do if after dismissal they do not issue a work permit?

Article 234 of the Labor Code of the Russian Federation.

According to Article 234 of the Labor Code of the Russian Federation, a person has the right to compensation for material damage. If the employer does not return the documents, the following steps can be taken:

• file a complaint with the labor inspectorate;
• write a statement to the prosecutor's office;
• file a claim in court former employer.

Litigation is the most reliable way to receive not only labor compensation, but also compensation for deprivation of the opportunity to get a job again. But you need to provide evidence of the violation and your missed opportunities in this regard to the court.

Important! The deadline for filing a claim is 3 months after dismissal.

What are the consequences for an employer of not issuing documents on time?

For the law, it does not matter for what reasons the issuance of a work book was delayed upon dismissal. Even if a person simply did not show up for work, responsibility for violating the deadlines for issuing will lie with the organization where he worked. And if management does not take proactive measures on time, the organization will be obliged to pay the employee compensation for material damage from failure to receive documents in the amount of average earnings for each overdue day.

The victim may also demand compensation for moral damage. The amount is determined by the court. In addition, the organization will pay legal and other costs.

The following penalties are provided for an administrative violation.

According to the rules for registration and storage of labor records, the day of dismissal in case of incorrect execution of the document, or delay in issuance, will be considered the day when the person receives the book in hand.

For reference! The organization issues a corresponding order and enters a new dismissal date. And the old entry is considered invalid.

Failure to issue a work permit due to the fault of the person leaving

It happens that the organization is not able to issue papers on time due to the fault of the employee himself. The most common situations are the following:

1. The employee was fired for absenteeism and also missed work on the last day.
2. The employee deliberately avoids receiving documents, not wanting to quit or pursuing selfish goals.
3. The organization's office is located in another city.
4. The employee was drafted into the army and did not have time to pick up his documents.
5. The employee was arrested and convicted.

Whatever the reasons why a person could not pick up his work permit himself, the organization must provide him with the opportunity to receive his documents within 3 days after applying or send them by mail at the request of the dismissed person. Unclaimed documents are stored in the archive for 75 years.

After sending a notification that the dismissed person needs to come for documents or send consent for postal forwarding, the organization is released from liability for late issuance.

Responsibilities of the employer when dismissing an employee
In accordance with Art. 84.1. Labor Code RF (Labor Code of the Russian Federation), the employer is obliged to make a full settlement with the employee, issue him a work book (as well as certified copies of documents related to work). An employer can refuse to issue documents on the day of dismissal only in two cases:
1. when the employee is absent from work, that is, there is simply no one to issue documents;
2. when the employee refuses to receive documents.
Obviously, both of these options are possible only on the initiative of the employee, but not the employer.
Thus, it is absolutely illegal to refuse to issue a work book and related documents due to the fact that the employee, for example, did not complete the inventory, did not fill out a bypass sheet, or did not submit material values or documents, did not complete any work, etc.
So is it possible to influence an employer who threatens to not issue a work permit? It turns out yes, and in at least two ways.
Method 1. Bringing the employer to administrative liability
In accordance with Part 1 of Art. 5.27. Code of Administrative Offenses of the Russian Federation, each unissued work book will cost the official or individual entrepreneur a fine of 1 to 5 thousand rubles, legal entities will be forced to pay a fine of 30 to 50 thousand rubles, or by a court decision the violator may be required to suspend activities for up to 90 days.
In order for an employer to be held administratively liable, it is necessary to submit an application to the territorial office Federal service on labor and employment (Rostrud), i.e. to the nearest labor inspectorate. This service is authorized to attract violators labor legislation to administrative liability under Art. 5.27. Code of Administrative Offenses of the Russian Federation.
The inspectorate issues binding orders to eliminate violations of the law, including issuing a work book to the employee. Failure to comply with such instructions promises the violator additional troubles in accordance with Art. 19.5. Code of Administrative Offenses of the Russian Federation, which provides for sanctions for officials in the form of a fine from 1 to 2 thousand rubles or disqualification for up to 3 years, for legal entities- a fine from 10 to 20 thousand rubles.
It is worth noting that when conducting an inspection based on your application, labor inspectors will check everything that they are allowed to check, and not just the facts you stated. Since finding violations in the work of the personnel service in most cases is not particularly difficult, employers prefer not to bring a conflict with an employee to proceedings with the state.
Method 2. Going to court to recover compensation from the employer for late issuance of a work book, as well as moral damages
By refusing to issue you a work book, the employer actually deprives you of the right to work, since without this document you cannot get a new job and enter into an employment contract. In this regard, you have the right to file a lawsuit to oblige the employer to issue you a work book, and also to demand compensation for the delay in issuing documents and compensation for moral damage to health (if you believe that the latter occurred). The amount of compensation for delay is calculated based on the employee’s average monthly earnings and is collected in proportion to the number of days of delay.
Remember that you should not delay going to court, since in accordance with Art. 392 of the Labor Code of the Russian Federation, the limitation period for labor disputes of this kind is 3 months. Upon a claim for compensation for the delay, the citizen is exempt from paying state duty, and when filing a claim for compensation for moral damage, he will have to pay 200 rubles, regardless of its size.
In general, the combination of the two methods described above to influence the employer, as a rule, gives a positive result, but, unfortunately, involves a significant investment of time and mental energy.

In most cases, dismissal does not have any negative consequences for the organization. However, sometimes problems and, as a result, losses appear where you do not expect them. It turns out that even such a seemingly trifle as a delay in issuing a work book can cost the employer dearly. Nikita Ukhverov, 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 employment contract the employer is obliged to issue the employee a work book and make a full settlement with him. If it is impossible to issue a work book to an employee on the day of termination of the employment contract 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 have it sent by mail. From the date of sending this notification, the employer is released from liability for the delay in issuing the work book.

Article 234 of the Labor Code of the Russian Federation provides that 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 lost as a result of the employer’s delay in issuing a work book to the employee.

In practice, there are cases when the personnel department or the director of an organization forgets to give an employee his work book, and the employee deliberately does not receive it, hoping to receive a certain monetary compensation in the future.

The amount of monetary compensation is established by paragraph 35 of the Decree of the Government of the Russian Federation of April 16, 2003 N 225 “On work books” and states that if there is a delay in issuing a work book to an employee due to the fault of the employer, or if the reason for the employee’s dismissal is entered into the work book with incorrect or non-compliant wording, the employer is obliged reimburse the employee for the wages he did not receive during the entire delay. Moreover, the day of dismissal (termination of the employment contract) in this case is considered the day the work book is issued.

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

Analyzing judicial practice courts of general jurisdiction, the following conclusions can be drawn that will help the parties win the trial. Firstly, the employer is released from liability from the moment the relevant notice is sent to the employee if it is not possible to issue a work book on the day of dismissal (Appeal ruling of the Primorsky Regional Court dated November 14, 2017 in case No. 33-11310/2017).

Secondly, the employment of a former employee in a new place terminates the period for which payment must be paid. financial compensation due to the fact that the employee is no longer deprived of the opportunity to work. (Appeal ruling of the Krasnodar Regional Court dated August 13, 2015 in case No. 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 the duplicate work book. (Appeal ruling of the Moscow City Court dated November 20, 2017 in case No. 33-46016/2017).

Fourthly, the delay in issuing a work book is not a continuing offense (Appeal ruling of the St. Petersburg City Court dated February 20, 2018 No. 33-3932/2018 in case No. 2-2610/2017). Provided by Art. 392 of the Labor Code of the Russian Federation, 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 a 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).

The employee’s labor document, if he does not have one, can be a serious obstacle to resolve the employment issue, significantly reducing the possibility of reaching an agreement with the employer.

Labor legislation, as well as civil proceedings, closely monitor the employer’s observance of the employee’s rights and hold him responsible for the timely return of labor compensation after dismissal. The law obliges.

Deadlines for issuance upon dismissal

Labor legislation provides for the dismissal of an employee subject to certain sequential actions:

1. Submitting a letter of resignation and having it signed by the manager in advance, 15 days before the termination of the employment contract.
2. Knowing 3 days notice to the employee upon dismissal due to disciplinary action.
3. Issuance of an order by the employer.
4. Making an entry in the “job information” in the labor record. What stamp is put in the work book upon dismissal - read.

Based on Art. 84.1 Labor Code of the Russian Federation, the employee's work permit must be issued upon his request on the last working day. On this day, an appropriate notice of dismissal must be made in the document, based on:

• on the relevant article of the Labor Code of the Russian Federation;
• on the issued order of dismissal.

In addition to making an entry, the employer or authorized person prepares documents where the signatures of the person receiving the book will be entered. These include:

1. Personal registration card for employees of an organization (enterprise).

If it is withheld or not issued within the specified period due to the fault of the employer, he is obliged to conscientiously postpone the day of dismissal to the date when the employee’s work will be duly transferred to him.

For the additional period required to organize the issuance of technical documentation, the employer is obliged to pay benefits based on the average wages resigned employee.

If the person who resigned was unable to receive it within the next three days, such a delay can be considered a gross violation of the legal rights and freedoms of a citizen of the Russian Federation.

In particular, the right to free work, which is an inalienable constitutional right of every citizen of the Russian Federation.

Does the employer have the right not to give?

The employer does not and cannot have such a right. Not only does he not have the right to withhold the document, he is obliged to show activity and initiative if the employee was negligent in receiving his own book.

On the last working day of the resigning person, an authorized employee must call him or contact him in some other way and remind him of the need to pick up the TC.

If the employee is not present at the workplace on the last day, the employer is obliged to notify him in writing, by registered mail, of the need to pick up his book.

Documents about the notification sent must be kept in the personal file former employee. TC must be returned even if the employee is outside settlement and cannot receive his book in person.

In this case, you can use the following options:

1. With the written consent of the dismissed employee, it is sent by Russian Post.
2. Transfer it through an intermediary on the basis of a power of attorney certified by a notary.

Under no circumstances should you:

1. Withhold labor costs if the employer imposes financial responsibility on the employee.
2. Force him to sign a bypass sheet or otherwise delay the issuance of the Labor Code.
3. Force a specialist to perform (complete) the work required by the employer.
4. Blackmail him and threaten him, for example, with dismissal “under the article” if he refuses to fulfill the employer’s conditions.

Knowing about the labor liability that threatens for failure to hand over, an employer who does not want to let go of the employee he needs usually acts in a different way - does not accept his resignation letter.

Is it possible for an employee to receive (establish) a labor code in exchange for a book not issued by the manager?

A work book is a special accounting document that must be stored under conditions of increased protection that do not allow:

• damage;
• theft;
• loss.

The rules for storing labor codes are indicated by Decree of the Government of the Russian Federation of April 16, 2003 N 225 “On work books”.

On their basis, it is determined that a new book, in replacement of a lost one, can be issued only on the basis of a document stating that it is subject to replacement. However, the issue of loss or damage to the work will become a burden of responsibility for the person authorized to store it.

If, instead of your work record, you were given a certificate stating that it was damaged, as well as an act that confirms this, you can count on the fact that at your new workplace you will be provided with a new record book. If you consider the issue of replacing the labor document in court, the culprit will pay damages for its restoration.

Where to go if they don’t give you your work book - read.

If replacement documents are not provided, a new book will not be issued to replace the lost one. In this case, you have the following options:

1. Wait for the issue to be resolved through the court, on the basis of which a new book can be opened. In this case, all previous work experience can be restored.
2. Notify the employer that the book is lost. He will start a new one, but responsibility for its absence will be placed on you, and not on the former employer who did not return it.
3. Start on new job TC, without the possibility of restoring the old one. Seniority for the time worked will not be restored, but you will not miss the offer of a new employer.

The latter method is not based on a legal basis; however, none of the instructions or provisions on the use of the Labor Code indicate the illegality of such actions.

If the employer does not give the work book, what to do?

The most common cases are when an employer avoids issuing a work permit or outright refuses to issue it:

1. Doesn't want to let the employee go because he needs him for the production process.
2. Demonstrates his power among members of the work collective, realizing the extent of the violation committed.
3. He is incompetent in matters labor law and is poorly aware of his responsibility.
4. The employee's work record is lost or damaged, and the authorized person is trying to avoid liability.

Knowing the motives for delaying labor, you will be able to most adequately navigate the ongoing process. If they are not clear to you, you need to cover them with a single algorithm of actions.

They don’t hand over your work book after dismissal - where to go?

Act with confidence, the protection of employee rights in labor disputes can be considered in various instances, where to go if they don’t give you your work book upon dismissal:

1. The Labor Dispute Commission (LCC) at the enterprise from which you are leaving.
2. Labor inspectorate of your region.
3. District court at the location of the organization.
4. The prosecutor's office.

Application deadlines

Keep in mind that the solution to the issue is statute of limitations is 1 month on all issues concerning labor relations. By court decision he can be extended up to 3 months, subject to your active attempts to return the Labor Code from the employer.

The framework of the established period is motivated by the fact that for the forced time of your absence, while you could not receive your book from the employer, you are entitled to compensation in the amount of the average salary paid to you in your last position. Accordingly, the terms of the provided payment are limited.

This period is counted from last day work at the enterprise, in accordance with the dismissal order. But if the order is not issued, and your application is lost for unknown reasons, you will have to act from the very beginning, submitting the application according to all the rules.

Write the application in two copies, submit it to the manager, explaining that he must sign the first application as responsible person, and the second copy is a copy. A copy is needed as a safety net to avoid the precedent of losing the submitted application.

After signing both copies, leave one of them for production, checking that it is correctly recorded in the incoming correspondence journal. Keep the second copy for safekeeping.

After this, after 15 days you have the right to demand the issuance of a work permit. In this case or in other situations when the employer has already issued a dismissal order, the book is issued without delay. If it is not issued within three days after dismissal, you have the right to contact the CTS, if it is available in your department or enterprise.

In other cases or at your discretion, You can contact the labor inspectorate. Based on a resolution issued by these organizations that protect the interests of workers, you can receive a delayed book.

If consideration of the issue is denied to you or the decision is not in your favor, after the refusal or negative decision received, you can submit documents to the district court at the location of the defendant’s organization (Article 35 of the Arbitration Procedure Code of the Russian Federation). Without prior consideration of the CTS issue or labor inspectorate, the court will not accept documents for processing.

However, please note the reason for your request being denied. In some cases, the employer is relieved of responsibility for late issuance of technical documentation. These may include situations:

1. If the date of dismissal does not coincide with the last day of work of the dismissed person on the basis of clause 6, part 1, article 81 or clause 4. Part 1 of Article 83 of the Labor Code of the Russian Federation (Part 6 of Article 84.1 of the Labor Code of the Russian Federation).
2. Upon dismissal of a woman whose contract was extended on the basis of pregnancy (Part 2 of Article 261).
3. After the employer has taken appropriate measures to transfer the labor to the owner.

In these cases, the employee can make a request for the issuance or forwarding of a document; there should be no obstacles to receiving it.

Sometimes the book is not issued associated with serious problems, which comprehensively address several aspects of labor legislation. For this reason, many employees immediately contact the prosecutor's office.

You must contact the district prosecutor's office of the area where the organization against which the complaint is being filed is located. The employee writes a statement to the prosecutor.

To apply, you need one small nuance - the employer really acted unlawfully towards you, and you filed everything properly.

In this case, the appeal will be as effective as possible, and the presumptuous manager will be held accountable for all violations immediately that the prosecutor’s audit reveals. Based on the results of the prosecutor's inspection, you will be given a document and paid for forced absences.

, unlike a claim, is written in free form, without references to articles and other grounds. Here you just need to state the circumstances of the case in a laconic form, indicating:

• dates of dismissal;
• name of the organization;
• your personal data;
• personal data of the responsible person.

Application to the prosecutor's office for non-issuance of a work book - sample:

The standard in this application should be only the “header”, which is drawn up in the upper right corner of the A-4 sheet. It must indicate in strict sequence:

1. To the prosecutor (indicate the name) of the district, city (name).
2. Last name, first name, patronymic of the prosecutor.
3. From whom, indicating the applicant’s last name, first name, patronymic, and home address.
4. Applicant's contact phone number.

After the name of the document, the text itself is drawn up, with a request to conduct a prosecutorial audit in order to protect your rights. Please indicate that the work book was not issued to you illegally. Expect the results to be presented to you in writing.

Responsibility on the employer storage and production of technical documentation is charged on the basis of Article 45 of the Rules (No. 225), which stipulate the need to organize conditions in production where the degree of protection of these documents will be extremely high.

In addition, liability may be imputed to a special authorized person on the basis job descriptions or an order from a manager.

The responsibility in this case will be considerable. In accordance with Art. 5.27 of the Arbitration Procedure Code of the Russian Federation, he can be held accountable in the form of an administrative fine from 30,000 rubles to 50,000 rubles. The authorized person may be fined the amount from 1,000 rubles to 5,000.

If, due to his negligence or abuse, the labor of an employee or several persons was lost, which entailed unpleasant consequences for them - Responsibility may reach the criminal level:

1. Based on Article 140 of the Criminal Code of the Russian Federation - failure to provide information.
2. Based on Article 293 of the Criminal Code of the Russian Federation - negligence.
3. Art. 324, 325 or 292 of the Criminal Code of the Russian Federation are charged in the case of an intentional mercenary order of an employee.

In addition, through a civil lawsuit in court, an employee injured due to a work book not being issued on time has the right to recover compensation for moral damages from the employer.

Collection occurs by filing a statement of claim in the district court at the location of the employer. There are more than enough legal grounds for this - this Article 151 of the Civil Code of the Russian Federation. Also articles of the Labor Code of the Russian Federation: 3, 21, 22, 237, 294.

Typically, moral damages are recovered along with material damages, which in this case will be payment for forced absence. You can recover moral damages for the suffering caused to you associated with the infringement of your rights, for discrimination, humiliation that you were subjected to by an employer who did not want to issue a work permit.

It is very appropriate to recover moral damages for offensive, derogatory behavior towards you in the presence of third parties.

If there are facts of serious life situation, in which you were very difficult and morally uncomfortable- indicate this in the application. For example:

1. Your nervous system is upset and you consult a doctor (provide a certificate).
2. You became depressed and needed the help of a psychologist or psychotherapist.
3. You suffered from powerlessness and resentment that you were treated unfairly.

All your claims expressed in the claim must be confirmed with certificates or testimony and you must ask the court to recover a specific amount of money, determined by you, for moral damage.

Conclusion

If you are not given your work book after your dismissal, act with complete confidence, demanding its issuance, regardless of the motivation for keeping the work book by your former boss or a person authorized to issue it. The employer does not have such a right.

In this case the employee has every right to pursue his claims and support from higher authorized organizations, regardless of the reason why the work book was not returned.

For the loss of this document, the manager and the employee responsible for storage will be charged with administrative, and in some cases, more serious liability.

When is an employer obliged to issue a work book to a resigning employee? What types of liability are provided for the employer in case of delay in issuing this document? What is the employer's financial responsibility? How is payment of compensation for delay processed? In what cases is the employer exempt from liability?

The form, procedure for maintaining and storing work books, as well as the procedure for producing work record forms and providing employers with them are established:

• Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”;
• Instructions for filling out work books, approved by Resolution of the Ministry of Labor of the Russian Federation dated October 10, 2003 No. 69.

Based on Part 4 of Art. 84.1 of the Labor Code of the Russian Federation, on the day of termination of the employment contract, the employer is obliged to issue the employee a work book and make payments to him in accordance with Art. 140 Labor Code of the Russian Federation. A similar requirement is contained in the Rules for maintaining and storing work books: the employer is obliged to issue the employee on the day of dismissal (last day of work) his work book with a record of dismissal entered into it. If it is impossible to issue a document on this day due to the absence of the employee or refusal to receive it, the employer is obliged to send him a notice of the need to appear for the work book or agree to send it by mail.

Upon written request from an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of application. Labor legislation provides for liability for violation of the deadlines for issuing a work book. Which?

Material liability

Based on Art. 232 of the Labor Code of the Russian Federation, the party to the employment contract (employer or employee) who caused damage to the other party shall compensate for this damage in the manner prescribed by the Labor Code of the Russian Federation and other federal laws. An employment contract or written agreements thereto may specify the financial liability of the parties to this contract. Moreover, the contractual liability of the employer to the employee cannot be lower, and the employee to the employer – higher, than provided for by the Labor Code or other federal laws.

Article 233 of the Labor Code of the Russian Federation specifies that the financial liability of a party to an employment contract arises for damage caused by it to the other party to this contract as a result of culpable unlawful behavior (actions or inaction), unless otherwise provided by the Labor Code of the Russian Federation or other federal laws.

So, by virtue of Art. 234 of the Labor Code of the Russian Federation, the employer is obliged to compensate the employee material damage– earnings not received by him in all cases of illegal deprivation of his opportunity to work, including in the event of a delay in issuing a work book. The same is stated in paragraph 35 of the Rules for maintaining and storing work books: when there is a delay in issuing a work book to an employee due to the fault of the employer, or an incorrect or inappropriate entry into the work book federal law formulation of the reason for the dismissal of the employee, the employer is obliged to compensate the employee for the wages he did not receive for the entire period of delay. In this case, the day of dismissal (termination of the employment contract) is considered the day the work book is issued. An order (instruction) of the employer is issued about the new day of dismissal of the employee and an entry is made in the work book. A previously made entry about the day of dismissal is declared invalid in the manner established by the Rules for maintaining and storing work books.

For your information

The legislator believes that untimely issuance of a work book makes it impossible for a former employee to find employment in a new place; accordingly, the employee must be compensated for lost earnings.

Let us note that the points of view of the courts on the issue of collecting lost earnings during the delay in issuing a work book are divided. Some believe that the fact of a delay in issuing a work permit is sufficient for recovery. Thus, Sh. filed a claim against the LLC in the Dzerzhinsky District Court of St. Petersburg. She asked the court to oblige the defendant to change the date of dismissal to the date of issue of the work book and to recover compensation in connection with the delay in issuing the work book for seven months. Sh. wrote a letter of resignation, according to which November 28, 2014 was her last working day. On this day, Sh. was not given a book, and on February 26, 2015, she received a notification about the need to come for a work book. The employer believed that he had not committed a violation, since he sent Sh. a notice. However, the court thought otherwise. During the trial, it was established that Sh. was at work on the day of dismissal; there were no grounds for non-issuance of a work book. A notice of the need to receive a book or agree to have it sent by mail was sent to the employee on February 20, 2015, that is, after almost three months from the date of dismissal. Sh. received a work book during the consideration of the case on July 1, 2015. Since the employer did not take all measures to hand over the work book to the quitter, the court recovered compensation for the delay in issuing the work book for the period from November 28, 2014 to February 20, 2015, and also changed the date of dismissal to February 20, 2015 (Appeal ruling of the St. Petersburg City Court dated October 27 .2015 No. 33-18051/2015).

Other courts find out whether the delay of the work record book by the employer really prevented the dismissed person from finding a new job, and make a decision depending on this. In particular, A. filed a lawsuit for the restoration of violated rights, since on the day of dismissal she was not paid and she was not given a work book. The employer refused to do this, citing A.’s debt to him. Considering the case, the court found that the employer had indeed delayed issuing the work book.

At the same time, according to the court, the legislator associates the possibility of the employer’s financial liability to the employee for the delay in issuing a work book with the guilty behavior of the employer. The court found that the employer had telephone conversations with A. about receiving the book, that is, he took measures to deliver it. And the plaintiff herself explained at the court hearing that after her dismissal she did not intend to get a job and did not make any attempts to find a job.

Refusing to collect compensation for the delay in issuing a work book, the court indicated that such a delay in itself does not indicate the deprivation of A.’s right to work due to the fault of the employer, since as a result of the latter’s actions no obstacles were created to A. concluding an employment contract with another employer and her receipt of wages. In this regard, the imposition on the employer of the obligation to compensate A. for property damage in the form of payment of earnings cannot be recognized as corresponding to the provisions of Art. 234 Labor Code of the Russian Federation.

The arguments of the complaint are that, according to Art. 234 of the Labor Code of the Russian Federation, in itself, the failure to receive a work book by the plaintiff indicates deprivation of her right to work, which means that the employer is obliged to compensate the employee for lost earnings, the court considered untenable, since they are based on a different interpretation of the current labor legislation (Appeal ruling of the Lipetsk Regional Court dated September 21, 2015 in case No. 33-2603/2015).

If, after all, the court sided with the former employee, compensation will have to be paid for the delay in issuing the book. Let us recall that the rules for calculating average earnings are set out in Art. 139 Labor Code of the Russian Federation. Plenum of the Armed Forces of the Russian Federation in paragraph 62 of Resolution No. 2 of March 17, 2004 “On the application by courts Russian Federation Labor Code of the Russian Federation" explained that since this norm a uniform procedure has been established for calculating the average salary for all cases of determining its size; the same procedure should be used to determine the average earnings when collecting sums of money during forced absence caused by a delay in issuing a work book to a dismissed employee (Article 234 of the Labor Code of the Russian Federation). Keep in mind that the specifics of the procedure for calculating average wages are determined by Decree of the Government of the Russian Federation of December 24, 2007 No. 922.

Compensation payment processing

The documents drawn up by the employer to pay compensation for the delay in issuing a work book vary depending on the reason. Let's look at them.

1.By the tribunal's decision.

As soon as the employer has a court decision on the payment of compensation, the employer must issue an order for its payment. Let's give an example of an order.

Municipal budget preschool educational institution

« Kindergarten No. 17 "Baby"

(MBDOU “Kindergarten No. 17 “Baby”)

Order No. 49

on payment of compensation for the delay in issuing a work book

Based on Art. 234 of the Labor Code of the Russian Federation and the decision of the Sverdlovsk District Court of Kostroma dated October 30, 2015 No. 5-5784/2015

I ORDER

pay L.V. Kudryashova compensation for late issuance of a work book in the amount of 18,113 rubles. 42 kopecks

Director Zanozina/A. O. Zanozina/

I have read the order:

Accountant Kozina, 11.11.2015/L. V. Kozina/

Since, in the event of a delay in the issuance of the book, the date of dismissal of the employee changes, the employer will have to issue another order (instruction) - about the new day of dismissal, and also make an entry in the work book. The previously made entry on termination of the employment contract is considered invalid. This is stated in paragraph. 4 clause 35 of the Rules for maintaining and storing work books

2.According to a former employee.

It is not at all necessary to wait for a court decision - everything can be resolved peacefully. It is possible that the employee will apply for compensation, and the employer will satisfy it or refuse it. In the latter case, most likely former employee will go to court. So, in the case of a “pre-trial” settlement of the issue, the employer must receive from the dismissed person a statement requesting payment of compensation for the delay in issuing the work book, on the basis of which (if agreed) an order is issued.

In order to pay compensation, so to speak, voluntarily, the employer needs to calculate the period of forced absence caused by the delay in issuing the book. This period is calculated from the day following the day when the employer should have issued the work certificate or sent a notice of the need to receive it, until the day the dismissed person received the book or sent him a notice.

Example

A. I. Volkova was dismissed due to at will 10/12/2015. On the day of her dismissal, she did not receive a work book. Work schedule: five-day work week. The work permit was issued on November 19, 2015. For what period is compensation due if A. I. Volkova’s average daily earnings on the day of dismissal was 780 rubles. 32 kopecks?

Let's determine the number of working days to be paid. Compensation for A.I. Volkova is due for the period from 10/13/2015 to 11/19/2015 - 27 working days. The amount of compensation for the delay in issuing a work book in this case will be 21,068.64 rubles. (RUB 780.32 x 27 working days).

Let us focus on one point: the employee himself may refuse to receive a work book on the day of dismissal. In this case, we recommend that the employer draw up an appropriate report and present it to the dismissed person for review. If he refuses to read the report, draw up another one confirming this fact. Mandatory after drawing up acts in accordance with the requirements of Art. 84.1 of the Labor Code of the Russian Federation, send a notice of the need to appear for a work book by mail. For what? We'll tell you a little later.

For your information

Work books and their duplicates, which employees did not receive upon dismissal, must be kept by the employer until required (clause 43 of the Rules for maintaining and storing work books). The shelf life of work books is 75 years (Order of the Ministry of Culture of the Russian Federation dated August 25, 2010 No. 558 “On approval of the List of standard administrative archival documents generated in the course of the activities of state bodies, bodies local government and organizations, indicating storage periods").

When an employer is released from liability for delay

The Labor Code stipulates that in some cases the employer is not responsible for the delay in issuing a work book. In particular, part 6 of Art. 84.1 of the Labor Code of the Russian Federation establishes two such cases:

1. If on the day of termination of the employment contract it is impossible to issue a work book to the employee. For example, he is absent from work or refuses to receive a book. In this case, the employer is obliged to send him a notice of the need to appear for a work book or agree to send it by mail. From the date of sending the notice, the employer is released from liability for the delay in issuing the work permit.

Let us note that the notification of the need to appear for a work book or to agree to send it by mail is an important document: you should not send a book by mail without the employee’s written consent to do so. Thus, compensation was recovered from the employer for the delay in issuing a work book, since it was not issued to the employee on the day of dismissal and without obtaining written consent from him, as required by Art. 84.1 of the Labor Code of the Russian Federation, it was sent by mail. The employer did not have evidence of issuing a work book to the employee upon dismissal, including against signature in the manner established by clause 41 of the Rules for maintaining and storing work books. As a result, the plaintiff’s demands for the recovery of average earnings during the delay in the work book were satisfied (Appeal ruling of the Voronezh Regional Court dated July 29, 2014 No. 33-3589).

2. If the last day of work does not coincide with the day of termination of employment upon dismissal of an employee on the grounds provided for in paragraphs. “a” clause 6, part 1, art. 81 (for) or clause 4, part 1, art. 83 (conviction of an employee to punishment that precludes the continuation of previous work) of the Labor Code of the Russian Federation, as well as upon dismissal of a woman whose employment contract was extended until the end of pregnancy or until the end of maternity leave in accordance with Part 2 of Art. 261 Labor Code of the Russian Federation. In these cases, upon a written request from an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of such request.

Compensation for moral damage

In addition to compensation for the delay in issuing a work book, the employee may demand compensation for moral damages.

What is considered moral damage, for which compensation is due, was explained by the Plenum of the Armed Forces of the Russian Federation in Resolution No. 10 of December 20, 1994, “Some issues of application of legislation on compensation for moral damage.” It says there that it is moral or physical suffering caused by actions (inaction) that encroach on intangible benefits belonging to a citizen from birth or by force of law (life, health, personal dignity, business reputation, privacy, personal and family secrets, etc.)etc.), or violating his personal non-property rights (the right to use his name, the right of authorship and other non-property rights in accordance with laws on the protection of rights to the results of intellectual activity), or violating the property rights of a citizen.

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 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.

The Plenum of the Supreme Court of the Russian Federation in Resolution No. 2 indicated that 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 circumstances worthy of attention, as well as the requirements of reasonableness and justice.

Almost every claim for restoration of violated rights of an employee is accompanied by a claim for compensation for moral damage. If the court sides with the employee, then it satisfies the last requirement. Payment of compensation for moral damage must also be formalized by order.

Other expenses

In addition to paying compensation, the employer may have to bear other expenses. In particular, if the claim for payment of compensation for the delay in issuing a work book was considered by the court, which sided with the dismissed person, legal costs must be reimbursed. According to the Code of Civil Procedure of the Russian Federation, they consist of state duties and costs associated with the consideration of the case (Part 1 of Article 88). What is considered costs is stated in Art. 94 of the Code of Civil Procedure of the Russian Federation: amounts to be paid to witnesses, experts, specialists and translators, expenses for paying for the services of representatives and related to the consideration of the case, postal expenses, etc.

An administrative fine is another possible cost item for the employer. The delay in issuing a work book is in fact a violation of labor legislation, for which Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation provides for administrative liability for legal entities - a fine of 30,000 to 50,000 rubles.

If the regulatory authorities establish that there has already been a delay in issuing a work book and the employer was held administratively liable for this, in the event of another delay, the fines will be more significant and for legal entities will range from 50,000 to 70,000 rubles.