Responsibility for late issuance of a work book for a dismissed employee in 2021

The obligation to maintain a work book, which implies its acceptance, storage, and making appropriate entries in it, is assigned to Part 1 of Art. 35 of the Labor Code of the Russian Federation for the employer. The issuance of a document to a dismissed employee, with a record of termination of employment, must be carried out on the date of his last day of employment.

An unjustified violation of this provision by an employer is a reason for applying liability measures against him. The following cannot be considered as legitimate justifications for refusing to provide a document to a dismissed person:

• work location in another office;
• its issuance after inventory activities;
• sending by mail, in the absence of the employee’s written consent.

Employer Responsibilities

On the day of dismissal, the employer is obliged to give the employee documents and the unpaid part of the salary in accordance with Articles 84.1 and 140 of the Labor Code of the Russian Federation. Upon written request, he must also provide copies of work documents and the dismissal order. Upon receipt, the employee signs the logbook from the responsible person in the HR department and his personal card.

The reason for dismissal, like other records, is indicated in strict accordance with current legislation. If it is impossible to hand over a work book to an employee due to his absence or disagreement, the employer records this information in the form of an act or indicates it in the report card and personal card.

There are situations when an employer does not issue a work book to an employee in a timely manner for the following reasons:

• Absence of the dismissed person from the workplace;
• Documented refusal to receive;
• A registered letter sent by the organization notifying the dismissed person to appear at the HR department to receive documents or the opportunity to send them by mail.

In these situations, the employer does not become liable, since the circumstances were beyond his control.

If there is no permission to send the necessary documents or the dismissed person is absent for a long time, the document is transferred for storage to the organization’s archive. It remains there until it is issued or for 75 years.

General rules on work books

Any employer (with the exception of employers - individuals who are not individual entrepreneurs) maintains work books for everyone who has worked for him for more than five days in the case where work for this employer is the main one for the employee.

The work book contains information about the employee, the work he performs, transfers to another permanent job and dismissal, as well as the grounds for termination of the employment contract and information about awards for success in work. Information about penalties is not entered into the work book, except in cases where the disciplinary sanction is dismissal.

The form, procedure for maintaining and storing work books, as well as the procedure for preparing forms of work books and providing them to employers 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. 140TC RF. A similar requirement is contained in the Rules for maintaining and storing work books: the employer is obliged to give the employee on the day of dismissal (the last day of work) his work book with a notice of dismissal entered in 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.

How to calculate compensation for late delivery

The period for calculation is calculated:

• from the day following the day when the employer should have issued the document or sent a notification about the need to receive it (Article 14 and Part 6 of Article 84.1 of the Labor Code of the Russian Federation);
• on the day of delivery or sending of the notice (Decision of the Moscow City Court dated May 12, 2012 No. 4g/8-3684/12, dated February 14, 2012 in case No. 33-3861).

The calculation of compensation for the delay in issuing a work book is based on the rules for calculating average earnings. They are set out in Art. 139 Labor Code of the Russian Federation. The approach is also used when collecting sums of money during forced absence caused by a delay in issuing a book (clause 62 of the Resolution of the Plenum of the Supreme Court of March 17, 2004 No. 2). The main features of the procedure for calculating average wages are determined by Decree of the Government of the Russian Federation of December 24, 2007 No. 922. The calculation of average daily earnings is carried out by sequentially dividing the data in columns 2, 3 and 4.

If labor is delayed for 5 days, the amount of compensation will be 10,665.1 rubles (the result is obtained by multiplying the data in column 1 by the number of days of delay - 5). Compensation is paid:

• at the request of the employee;
• as a result of a voluntary decision of the employer;
• in pursuance of a court decision.

Refusal of the employer to issue a work permit. What to do?

An employee who is deliberately not issued a work permit in a timely manner must:

Responsibility for repeated violation

When the employer commits the same violation again, he will have to pay more (clause 2 of Article 5.27 of the Administrative Code). The extent of responsibility is as follows:

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

Example. Individual entrepreneur Molotov refused to issue a work certificate to his seller after his dismissal. Motivation - he did not provide an act of write-off of products. Molotov turned to the labor inspectorate. Experts discovered that the individual entrepreneur had already committed a similar violation and got off with a fine of 1,000 rubles. For repeated failure to comply with legal norms, he was fined 10 thousand rubles. fine and ordered to return the document to Molotov within 3 days. Otherwise, the inspection will help the employee file a claim in court.

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 here.

Based on Art. 84.1 of the Labor Code of the Russian Federation , an 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 an 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).
2. Book of movement of work books and inserts.

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 Labor Code, the employer is obliged to pay benefits based on the average salary of the resigned employee.

It will be considered a violation if the TC is not properly prepared for issuance to the owner if he applied for it on the last day of his stay at the enterprise.

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.

What to do if there is a delay in issuing a work book?

The employer's performance of actions indicating a refusal to issue personal documentation in a timely manner allows the person whose right has been violated:

• submit a statement to the offender about the need to stop carrying out illegal actions. Such an application should be sent through the office or by mail in order to have appropriate marks about its direction;
• prepare and submit:
  a complaint to the State Labor Inspectorate. The received complaint must be considered within a month, after which a written response is provided to the applicant;
• a complaint to the district prosecutor's office;
• a statement of claim to impose on the person who violated the right the obligation to transfer labor, as well as payment of compensation for the entire period of unlawful retention of the document, during which its owner could not perform his professional functions in another manner.

Important

When choosing a judicial type of defense, you must meet the three-month deadline for filing a claim, the beginning of which is determined by the date of dismissal.

In the absence of special knowledge with which a citizen could independently file a claim, it is worth contacting specialists for its preparation.

Important

Funds spent on providing legal assistance, judicial representation, other expenses incurred in connection with the consideration of the case, as well as compensation for moral suffering that occurred in connection with the violation of rights, are subject to recovery from the guilty party along with satisfaction of the main requirement for the issuance of a document.

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 is obliged to call him or contact him in another 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.

Documentation of the notice sent must be kept in the former employee's personal file. The TC must be returned even if the employee is located outside the locality and cannot personally receive his book.

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.

Forms of responsibility

If an employee fails to receive documents on time, he or she can count on compensation for material and moral damage for the time he was unable to get another job. A fine is imposed on the responsible executive of the HR department or organization in accordance with the provisions of the Code of Administrative Offenses of the Russian Federation .

Salary compensation

The responsibility of the employee and the employer under the employment contract is provided for in Article 232 of the Labor Code of the Russian Federation. Issues of wage arrears to staff or damage to the organization if an employee violates working conditions are resolved mainly by agreement of the parties.

Moreover, the legislation clarifies that the employer can recover damages from the employee not in full, but only in part, but must pay it off in full.

Liability, terms and procedure for compensation for damage may be specified in the contract or additional agreement. In other cases, interaction between the parties is carried out in accordance with the requirements of the Labor Code of the Russian Federation and the debt can be reimbursed on a voluntary basis. The delay or refusal of the employer to issue a work book deprives the dismissed person of the opportunity to work and earn money, which affects the quality of life of the person and his family.

Article 234 of the Labor Code of the Russian Federation regulates the relations of the parties in case of incorrect registration of a work book. For legislation, there is no fundamental difference in refusal of issuance, delay or incorrect registration. The procedure for compensation for damage is specified in Article 394 of the Labor Code of the Russian Federation:

1. The reason indicated by mistake is deleted by striking out with a link, signature and transcript of the entry made.
2. The organization issues a new dismissal order and transfers it to the labor office.
3. The victim receives wages calculated on average for the days of impossibility of employment.

At the same time, labor legislation does not consider it an error to record a dismissal by agreement of the parties if it occurred at one’s own request. This is not a barrier to employment and does not cause any harm.

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 budgetary preschool educational institution

“Kindergarten No. 17 “Baby”

(MBDOU “Kindergarten No. 17 “Baby”)

Kostroma November 11, 2015

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

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, the 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 at her own request on 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 records 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 management archival documents generated in the course of the activities of state bodies, local governments and organizations, indicating storage periods”).

Compensation for moral damage

Compensation is subject to moral damage caused to a quitter as a result of the actions of responsible persons of the organization. Along with the untimely issuance of documents, the payment of wages is also delayed.

A person fired from work is left without a livelihood, cannot find a job and cannot reach management personnel.

Compensation for moral damage occurs in court. According to the law, the dismissed person has three months to file an application. The court takes into account the severity of the harm caused, witness testimony and important facts.

Administrative penalties

For the untimely issuance of a work book to a resigned employee, the employer is liable under the provisions of Article 5.27 of the Code of Administrative Offenses of the Russian Federation. A fine of 1 to 5 thousand rubles is imposed on an employee of the personnel department or other responsible employee appointed by order of the organization. The same amount will have to be paid to small business owners. For large enterprises, the fine ranges from 30 to 50 thousand rubles.

Administrative liability for an official or organization occurs in cases where a dismissed or resigned person files complaints with the State Labor Inspectorate or the Prosecutor's Office. The final authority is the court. In the event of a court decision in favor of the former employee, the employer pays all costs.

Types of employer liability

Among the main types of liability that may be applicable to persons who have violated the provisions of Art. 35 of the Labor Code, regarding the timeliness of issuing a work permit to an employee who has been fired, we can highlight:

• material;
• administrative responsibility;
• obligation to compensate for the moral suffering caused.

Based on the norm of Art. 232 of the Labor Code, damage committed by one party against the other party, who are jointly in an employment relationship, is the basis for compensation for damage. This obligation does not end even after the relationship is terminated.

The absence of legal rights to restrict a person from work, expressed in the delay in providing the dismissed person with the documentation filed in his name, by virtue of Art. 234 of the Labor Code, is the basis for applying material penalties to the guilty person.

Information

The amount of financial compensation is usually calculated from the average salary multiplied by the number of days during which the violation of rights occurred.

Administrative penalties are established against employers based on their status:

• officials are subject to a fine, the amount of which is 1-5 thousand rubles;
• individual entrepreneurs are fined 1-5 thousand rubles. or their activities are suspended for no more than 90 days;
• legal entities are subject to a fine of 30-50 thousand rubles. or their activities are suspended for no more than 90 days.

Unlawful actions may result in moral suffering for an individual, which, by virtue of Art. 1099 of the Civil Code of the Russian Federation are subject to compensation regardless of compensation for property damage. When determining their monetary equivalent, the level of guilt characteristic of the offender’s actions, the individual characteristics of the parties, reasonableness and fairness are taken into account.

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 duty and costs associated with the consideration of the case (Part 1 of Article 88). What is considered as 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 a delay in issuing a work book has already occurred and the employer was brought to administrative responsibility 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.

Administrative liability of the employer for the delay in issuing a work book

If it is discovered that the work permit was not issued on time, the employer will have to incur material costs. And it doesn’t matter what the reason is for his failure to comply with the requirements of the law. Penalties are what will inevitably follow a violation of labor standards. Their dimensions are established by Art. 5.27 Code of Administrative Offenses:

The amounts are transferred to the state treasury.

Important! An official of the organization through whose fault a violation of the Labor Code occurred may get off with a warning if such a situation occurred for the first time.

Is labor delay not an obstacle to employment in a new place?

In turn, the St. Petersburg City Court did not seek compensation from the organization at all for the work book not being issued to the employee on time. (Appeal ruling dated November 6, 2018 No. 33-22399/2018). The judges noted that the fact of delay in itself is not sufficient to qualify the employee for such compensation. The employee must also prove the existence of attempts at employment and refusals due to his lack of a work book. In addition, in the situation considered, although the employer lost the original work book, he made efforts to correct it, the judges indicated.

So, the HR service manager of the LLC agreed with the employer to dismiss her by agreement of the parties (clause 1 of part 1 of Article 77 of the Labor Code) and to send the work book by mail to her home address. After some time, it turned out that the work was lost.

The employer independently decided to issue the former employee a duplicate document, for which he sent requests to her previous places of work. As a result, the dismissed employee received the necessary papers only four months later and went to court, demanding to recover 170 thousand in compensation from the employer for the delay in issuing the work book.

The courts of two instances rejected the claim, pointing out that the employer is obliged to reimburse earnings for the period of delay in issuing a work book only if the former employee proves that he was unable to find a job without having documents in hand. The plaintiff informed the court about the fact of refusal to hire, but did not provide evidence of this.

As a result, the St. Petersburg City Court concluded that there were no grounds for compensating the employee for damages due to illegal deprivation of the opportunity to work.

The same argumentation is presented in the appeal ruling of the Moscow City Court dated November 14, 2016 in case No. 33-39997/2016. It’s funny that the Moscow City Court referred to its right to evaluate evidence according to its inner conviction (Part 1 of Article 67 of the Code of Civil Procedure of the Russian Federation).

As for the Nizhny Novgorod Regional Court, in its ruling dated 02/06/2018 in case No. 33-771/2018, the following was noted: a delay in issuing a work book is an obstacle to the employee taking a new job, and, as a result, entails the deprivation of the employee’s opportunity to work and receive wages. Accordingly, a legally significant circumstance is the establishment of the fact that the employee, after dismissal, applied to other employers for the purpose of employment and the fact that this was refused due to the lack of a work book. In this case, the responsibility to prove these circumstances rests with the employee. If we follow this logic, then an employee who has not provided evidence of applying to other employers for employment after dismissal and being denied this because he does not have a work book, has no right to compensation.

note

From the day the employee is notified of the need to appear for a work book or agree to have it sent by mail, the employer is released from liability for the delay in issuing a work book (clause 36 of the Rules for maintaining and storing work books, producing work book forms and providing employers with them).

Meanwhile, refusal to hire due to lack of a work book is illegal. In any case, it is not determined by the employee’s business qualities (Article 62 of the Labor Code of the Russian Federation, paragraph 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2). True, on the basis of Article 65 of the Labor Code, a person applying for work presents the employer with a work book (except in cases where an employment contract is concluded for the first time or the employee enters work on a part-time basis). But if a person applying for work does not have a work book due to its loss, damage or for any other reason, the employer is obliged, upon a written application from this person (indicating the reason for the absence of a work book), to issue a new work book. This norm confirms that the absence of a work record does not prevent employment.

Some questions and answers

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

Answer. The employer has the right to write a notice in any form. A unified form for such a document has not been developed. You just need to describe the situation in detail and offer the employee to pick up the work in person or agree to send it by post.

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

Answer. You cannot delay going to court, since the statute of limitations for such disputes is 3 months ().

Question for an expert. Vetrov I.I. decided to file a lawsuit against the company for not returning his salary after dismissal. What will he have to spend the money on?

Answer. Most cases regarding employer violations of deadlines for issuing documents upon dismissal are resolved in favor of former employees. As a result, legal expenses, consisting of state fees and costs associated with the consideration of the dispute, are reimbursed by the employer. The employee will have to pay 200 rubles if he files a claim for compensation for moral damage. In this case, its desired size does not matter. The former employee is exempt from paying state duty.

Practicing lawyer K.T. Veresov

Every employer is required to master the basics of the Labor Code so as not to spend earned money on paying fines. It is beneficial for the employer to comply with labor laws, especially regarding issues of dismissal of employees. At the slightest violation, they can go not only to the labor inspectorate, but also to court. Then the company’s expenses will increase noticeably - they will be replenished with a new item “Ship costs”.

Financial liability to a dismissed employee

Late issuance of work permits creates considerable difficulties for the dismissed employee. First of all, he cannot present the document to the new employer, which is a mandatory condition for hiring. As a result, the employee will have to remain without a livelihood indefinitely. We should not forget about moral damage.

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

• the amount of lost earnings for the period of time that passed from the moment of dismissal to the date of issue to the employee of his work permit;
• moral damage caused to the dismissed employee.

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