Very often in labor practice, many questions arise in connection with obtaining a work book upon dismissal.
Questions start from both the employee, who has never encountered anything like this, and the employer, who does not know how to correctly formalize such an action.
Moreover, many employers, for example, start-up private entrepreneurs, have no idea at all about how dismissal should occur with the subsequent issuance of a work book. Let's look at all the nuances on this issue together.
Perhaps, it is as a result of our painstaking work that you will grasp the essence of how dismissal is carried out and will not make the most common mistakes, thereby putting yourself and your employee in an awkward position.
Every employee should know his rights not only upon dismissal, but also upon the issuance of a work book, if only because labor rights, unfortunately, are practically unknown to the majority of workers today. A large percentage of workers, even if their rights have been violated, do not seek to restore justice and receive compensation for the damage caused.
Let's start looking at the situation right now.
When is an employer obliged to return (issue) a work book upon dismissal?
Let's consider the unfortunate question of when should you hand over your work book upon dismissal? The employer is obliged to issue a work book and copies of documents to the employee upon his immediate dismissal. It can be caused by various reasons. But, despite the fact that the employer and employee may simultaneously have a lot of reasons for dismissal, the basic rules for issuing a work book upon termination of an employment contract must be observed - the employer must issue a document to the resigned employee. Everyone is also concerned about the timing of the issuance of a work book.
Not very experienced employers and new employees have no idea about the time frame within which a work permit should be issued.
In this regard, a number of not the most favorable consequences may occur, arising out of ignorance . The employer can detain the employee's work, and the employee, knowing about the illegality of the employer's actions, can sue .
Also, taking advantage of the employee’s ignorance of the deadlines, the employer can fully delay the issuance of the work permit at his own request.
The work book must be issued to the employee on the day of his official dismissal, that is, on the last working day. This cannot be done a day later or earlier.
But, unfortunately, many citizens of our country do not study the Labor Code of the Russian Federation, and, consequently, do not know about such clearly established deadlines.
Return deadlines
When and within what period is a work book issued upon dismissal of an employee? Thus, on the last day of performing his labor function, the employee receives his work book. In the future, only he decides where to go with her.
The employer does not have the right to delay the issuance of this book. But sometimes, due to the fact that the employee is on a business trip or cannot receive the document in person, these deadlines can be extended.
The procedure for issuing a work book upon dismissal
The issuance rules are regulated by Article 84.1 of the Labor Code of the Russian Federation, as well as the provisions of the Decree of the Government of the Russian Federation of April 16, 2003 N 225 “On work books”.
The book is issued in the following order:
- The employee issues a dismissal order.
- An entry about the termination of the employment contract is made in the work book, indicating the date, reason, dismissal with reference to the articles of the Labor Code, as well as the number of the dismissal order.
- All entries made in the work book while working for a given employer are certified by the signatures of the employer and employee, as well as a seal.
- Information about dismissal and issuance of a work book is entered into the employee’s personal file, where the latter signs.
- A note about the issue of the book to a specific employee is also made in the work book movement journal, who confirms this fact with a personal signature in the journal.
- The work book is issued to the employee.
Many employers try to reinsure themselves: they additionally draw up an act on the transfer of the work book or ask the employee to write a receipt.
When and how can I pick it up?
How to get a work book upon dismissal? After his dismissal, the employee must report directly to the employer or to the personnel department of the organization or individual entrepreneur.
It was there that the employee’s work book was kept for the entire period of activity. The employee must introduce himself and, after showing his dismissal documents, pick up his document .
Of course, such an action must be preceded by a certain period of work , as well as the official termination of the employment contract that was made between the employee and the employer. Only upon completion of these points is it possible to issue a work book to the resigning employee.
How to pick up a work book from an employer without working off?
As we know, the Labor Code stipulates the rule that the employee notifies the employer of his dismissal in advance, and after that he must carry out his labor function for another two weeks. But, outside the rules of the code, the work of a resigning employee is a matter of only two persons, the employee and the employer, and no one except them has the right to decide whether to work for the employee or not.
If an employee has circumstances that do not allow him to remain at his place of work for another two weeks, then the employer can accommodate his subordinate. But such circumstances can only be very important facts , for example, illness, urgent relocation, and so on.
Is a receipt for receipt of a work book required upon dismissal of an employee?
In order to understand when and how this notice is drawn up upon dismissal, you should refer to the procedure established by labor legislation. So, the rules for registering dismissal are directly determined by Art. 84.1 Labor Code of the Russian Federation. According to the requirements of this article, on the day of dismissal, the employer, among other things, is obliged to give the employee his work book. In turn, the dismissed person must put his signature on personnel documents (dismissal order, his personal card, etc.).
In addition, the employer often asks the dismissed person to sign the receipt issued when issuing the work book. It should be noted that issuing such a receipt specifically upon dismissal is not a generally obligatory action, and Art. 84.1 of the Labor Code of the Russian Federation it is not indicated. Nevertheless, the employer has the right to do so if he deems it necessary. Well, the dismissed employee has the right to refuse to sign (or write) a receipt. If the employer refuses to sign, following the general procedure, he can simply draw up an act of refusal, and then attach it to the book of registration of the movement of work books.
This measure is understandable and generally justified. But a logical question arises: why does the employer need all this if, according to the Labor Code of the Russian Federation, drawing up a notice upon dismissal is not required? The answer turns out to be banally simple: such a notice upon dismissal is a kind of safety net for the employer. On the one hand, it completely relieves the employer of responsibility for late issuance of a work book upon dismissal. On the other hand, in this way he, as it were, insures himself when dismissing a “problem” employee and excludes in advance any third-party fraud with the work book.
It should also be noted that there are certain situations in which a dismissed employee cannot come to the HR department to receive a payment, pick up a work book, or perform other required actions. Then the dismissed person has the right to instruct his authorized representative (authorized representative) to do all this in his place. The fact of transfer of relevant powers to a representative, as is customary, is formalized by a power of attorney certified by a notary.
Only after this, this representative, vested with the necessary powers, has the right to receive money for the dismissed person, a work book and perform other actions that accompany the registration of dismissal. The receipt is no exception. Under these circumstances, it will be drawn up and signed by an authorized representative who has a certified power of attorney.
Transfer certificate
How to compose it correctly?
After dismissal, the work book must be issued directly to the employee.
But some unscrupulous workers , wanting to recover a penalty from the employer for withholding the work book, file a lawsuit and deny the fact of finding and transferring the work book to them.
In order to protect the employer, the personnel department staff draws up a corresponding act, which is sent to the employee’s personal file.
An act of transferring work books upon dismissal is drawn up on sheet A4 . It can be compiled either in printed or written form. This act must state that the employee worked the period before dismissal and on a specific day came to collect the work book. Next, the employee must write that he received the document directly in his hands and put his signature.
Only after this the employee takes possession of the document.
There is no established form for drawing up such an act, so most often it is written by hand, in free text and in appearance is very similar to a receipt.
This document is stored in the archive along with other documents of the dismissed employee.
Procedure and rules for issuing
Application for issuance of a work book for a dismissed employee
In order for the employer to issue you a work book within some time after dismissal, it is not at all necessary to draw up an application. In large corporations, where there is a huge turnover of business, employers require their subordinates to draw up an application for extradition.
Later, such a statement is added to the personal file. But if your organization or individual entrepreneur does not have such a rule, then you should not write an application.
If, however, you decide to write an application for issuance, thereby protecting yourself from unlawful actions on the part of the employer, you need to find out the full name of the employer to whom you are sending the application, and also voice a request for the issuance of a work book.
Only after this will your document be issued to you.
How to write correctly?
The application is drawn up on a regular A4 sheet of paper. You can type it on a computer, or you can write it by hand. There is no form prescribed by law, so you can write the application in any form or ask the HR department to write it. Be sure to sign and date the application at the end.
Sample application for issuance of a work book upon dismissal:
Receipt
How to fill?
The receipt for receipt of the work book upon dismissal must be properly executed. But, unfortunately, many employees and employers do not know about this. A receipt can be written instead of a transfer deed, and can also be drawn up along with it. In the receipt, the employee writes that he received the work book in his hands on a specific date and puts his signature.
Sometimes the receipt includes a phrase stating that the employee does not have any claims against the employer or personnel department employees. Often the receipt is written directly in the work book by the employee. The entry usually states that the work book has been received and is dated and signed. This completes filling out the receipt.
As a rule, such a document, if it is drawn up on a separate sheet, is sent to the archive, and if it is in a work book, it is immediately sent to the employee.
Sample receipt for receipt of a work book upon dismissal:
Employment history. How to obtain an employee's main document?
Elena KORNUSHENKO, a lawyer at the law firm “Sysuev, Bondar, Khrapoutsky SBH,” answers a question from an AiF reader
— According to Article 50 of the Labor Code of the Republic of Belarus, a work book is the main document about the professional activity of an employee. It is filled out by the employer for all employees employed for more than five days, including those entering work for the first time, if the work of this employer is the main one for the employee.
— Is it possible to get a work book in hand?
- This is possible, but only for a while. According to the law, during the period of work for the employer, upon the written application of the employee, no later than within five days, he is issued a work permit, however, for no more than 5 calendar days and against receipt.
Dismissal
— In what order is a work book issued upon dismissal?
— According to Article 50 of the Labor Code, the employee receives a document on the day of dismissal (on the last day of work). Upon termination of an employment agreement (contract), all entries made in the labor record during the time of work for this employer are certified by the signature of the latter or another person authorized to make entries in the work books, and the seal of the employer (representative office of a foreign organization) is also affixed.
If an individual entrepreneur does not have a seal, as well as in the event of the death of an individual employer (if we are talking about the work book of a home-based worker), the listed information is certified by the seal of the registering authority at the place of residence of the individual entrepreneur, the local executive and administrative body that registered the employment contract.
By mail
— It happens that an employer delays issuing a work book to an employee...
— If there is a delay in issuing a work book due to the fault of the employer, he bears responsibility in accordance with Article 79 of the Labor Code: the employee is paid the average salary for the entire period of forced absence, and the date of dismissal is changed to the day the work book is issued.
An order (instruction) of the employer is issued regarding the new date of dismissal of the employee (termination of the employment contract), and a corresponding entry is made in the work book. A previously made entry about the day of dismissal is considered invalid.
— An employee may be absent from work on the day of dismissal or refuse for some reason to receive a work book. What does the legislation provide for in such cases? Can a work book be sent by mail?
— If an employee refuses to receive a work permit, the employer must draw up an act indicating the witnesses present. According to the law, if an employee is absent from work on the day of dismissal or refuses to receive a work book on the same day, he is sent a registered letter notifying him of the need to appear to receive the document. The work report itself, of course, is not sent.
But if there is a written application from the dismissed employee, which sets out a request to send the work book by mail, the employer, no later than the next day after receiving such an application, sends the document to the address specified in the application.
Maxim SERGEENKO
What to do if the employee did not receive a work book on the day of dismissal?
It often happens that on the day of dismissal, an employee cannot be at his place of work or cannot pick up his work permit for other reasons.
Without any delay, the employer must contact the employee. If this is not possible, then the work report is sent by registered mail to the employee’s residential address.
If the letter is returned and the book has not been received, then the employer is obliged to keep the document until the employee or one of his relatives comes to pick it up.
Possible reasons for the need to have a work book on hand for several days
Only on January 1, 2015, everything began to become clearer. Amendments to the necessary rules and codes have been made. And the issuance of a labor document became possible, according to the main state document on labor. Now you can safely accept the employee’s application and hand over the original work book. There is only one condition for issuance. Term. The work book is issued for a pre-agreed time.
The need to pick up a work book without being fired does not arise, frankly, often. There are few possible options here:
- the approaching time of pension assignment;
- negotiations with another employer about a job change or part-time work;
- to make a notarized copy of the work book.
In the first two cases, it would seem enough to take a certified copy of the work document.
But in practice it is not always enough. The Pension Fund's instructions are also contradictory. In one regulation, when considering the assignment of a pension, only original documents are required. This means that the work book must be presented in original. According to other rules, it is the work book that is excluded from the list of original documents required to be submitted to the Pension Fund. Any official would prefer to play it safe. Therefore, it is better for a working applicant for a state pension to obtain an original certificate of his work history. It is better to search for another job in a normal manner while the person continues to work. There are also businessmen for whom the professional experience of an applicant for a vacant position is important. They could have been content with a certified copy. But they are not always satisfied. When applying for a part-time job, the work book remains in storage with other documents at the main place of work.
Possible problems and disputes
Often, upon dismissal, a number of problems arise related to the issuance of a work book upon dismissal, which have not yet been provided for by legislators. For example, when an employer sends work to an employee at his place of residence and then receives it back, the employer simply keeps the work at home.
Often, after a long time, an employee appears who says that they simply did not give him a work book and begins to demand compensation.
In labor practice, this happens quite often and the legislator has not yet provided for ways to protect the employer from treachery on the part of employees.
Another significant problem and at the same time a gap in the legislation is the issue of issuing a work book on the day of dismissal. Sometimes the day of dismissal falls on a weekend, and the employee is forced to wait until Monday for his document to be issued.
Everything would be fine, but if an employee needs to start a new position at a new place of work starting next week, the previous employer may make concessions.
But very often, upon dismissal, just the opposite happens, and the employer delays the issuance of the work book as much as possible. Unfortunately, not every employee has sufficient knowledge of labor law to competently defend their interests.
