What to do if the employer does not give the work book

Author of the article: Aleksenko Sergey

Last update: 03/26/2021

Reading time: 3 min. | Views: 1420

Hello, they won’t give me my work permit after a quarrel with my boss and my dismissal from my previous job. Tell me, what should I do if the employer does not give me my work book and where is the best place to go in such situations? Thank you in advance.

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Marina, 34 years old, Moscow

Hello, by not returning the work book to the employee, the employer is committing a gross violation of the law. To return this important document, you can contact the labor inspectorate or file a claim with the judicial authorities. It is important to know the main features of this procedure.

So, what to do and where to go if the employer does not give you the work book.

You will learn about what to do if the employer does not hand over your work book and where to turn in such situations in this article.

Within what time frame must a work permit be issued after dismissal?

The deadline for issuing all documents upon dismissal is specified in clause 1 of Article 84 of the Labor Code of the Russian Federation.

According to the rules, the book is issued to the employee on the last working day. Unreasonable delay of the work record book violates the rights of the dismissed citizen. He can contact authorized government agencies to resolve the issue.

How bosses make excuses

The ingenuity of management in trying to shift the blame onto the employee himself is often unpleasantly shocking. In order for the unfortunate person resigning to independently make a duplicate of the work book, draw up documents, or agree to resolve the dispute without trial, they use various cunning techniques.

For example, a manager may state that a book was issued to an employee, but he did not sign that he received it. In such a situation, the boss is responsible for the condition of the employees’ documents; if anything was done incorrectly, this does not exclude responsibility and force the manager, one way or another, to give the employee a copy of the work document.

Where to go if the employer does not give the labor

To resolve the issue of non-issuance of a work book upon dismissal, a citizen applies to one of the following institutions:

• Labour Inspectorate;
• judicial authorities;
• prosecutor's office

ATTENTION! The method of filing a complaint in case of violation of the law in relation to an employee differs in different institutions.

Labour Inspectorate

Rostrud has the right to inspect the company's work.

The application is drawn up in free form. The document reflects the following information:

• information about the place of work (name, address, full name of the manager);
• personal data of the applicant (full name, position at previous job, passport details, registration address, contacts);
• the period during which the citizen was an employee of the company;
• date of termination of the employment contract;
• description of the violation;
• Date of preparation;
• applicant's signature.

The original employment contract must be attached to the document.

Judicial authorities

Failure to issue a book is a violation not only of labor legislative rules, but also of administrative ones.

In this regard, to resolve the problem, the employee has the right to go to court. To do this, you need to collect the following set of documents:

• passport;
• statement;
• a copy of the job description;
• original rental agreement;
• order of registration and dismissal;
• employer's confirmation of refusal to return the document.

There is no universal form for filing an application. However, the document must reflect the following information:

• the name of the judicial authority to which the claim is filed;
• personal data of the plaintiff or his representative (full name, passport details, registration address, contacts);
• information about the defendant (name of the enterprise, full name of the manager or responsible person, address, contacts);
• fact of violation (date of dismissal, delay periods, reference to the relevant legislative act);
• list of requirements;
• list of submitted documents;
• Date of preparation;
• applicant's signature.

A sample application is available here.

An employee's appeal to the court is carried out within the time limits prescribed by law. According to Article No. 392 of the Labor Code of the Russian Federation, a claim is filed within 30 days from the date of dismissal.

Prosecutor's office

The citizen is required to write an application and provide a package of necessary documents to the prosecutor's office. This method allows you to quickly resolve the conflict.

Material and moral compensation for the employee

By failing to return the work book in a timely manner, the employer deprives the employee of the opportunity to find a new decent job, since official registration for work will require not only the conclusion of an employment contract and the issuance of an acceptance order, but also a corresponding entry in the book. He also faces not only difficulties in finding a job, but cannot receive benefits when registering with the Employment Center. All this creates a reason to sue the employer for compensation for financial losses and moral damage. For all days of forced unemployment, the court may oblige the defendant to pay the departing employee funds to compensate for all his losses. The compensation should be an amount calculated by multiplying the average daily earnings of the former employee by the number of days of delay in returning the document.

Compensation for moral damage caused by the actions of management from the previous place of work is carried out in accordance with Article 237 of the Labor Code of the Russian Federation. The amount of such payment is determined by the court, taking into account all the facts of violation of legislation regarding labor law by the employer in relation to the departed employee.

Responsibility of the employer for failure to issue a document

Article 5.27 of the Code of Administrative Offenses of the Russian Federation provides for an administrative fine for refusal to return work.

The amount of the penalty is:

• from 30 to 50 thousand rubles. – for companies;
• from 1 to 5 thousand rubles – for officials and entrepreneurs.

IMPORTANT! The fine is paid by the employer to the state.

According to Article No. 234 of the Labor Code of the Russian Federation, a former employee whose rights were violated has the right to receive compensation. To do this, you need to write this requirement in the claim.

Situations are possible when the parties to the conflict manage to agree on the amount of compensation without the participation of the court.

Compensation for refusal to return the work book by the employer

The payment of compensation is formalized by a separate order, which is sent to the settlement department, and the basis for the order is the labor agreement between the employee and the employer if the amount of compensation satisfies both.
If an agreement has not been concluded, the basis for the order will be a court decision. Also, the losing party, which most often is the employer, fully reimburses all the employee’s costs associated with the court, and this is a state fee and various costs, which include:

• payment of experts from the labor inspectorate;
• costs of paying for travel to court if the employee lives in the region, etc.;
• expenses that are associated with accommodation, ensuring timely appearance on a court summons, again apply to employees living in the region;
• payment for legal defense services;
• payment of expenses for requests to various departments and authorities.

If the court is loyal to the employee, the employer will be obliged to compensate for these expenses, therefore, as a rule, all such issues are resolved by the employer peacefully without the employee going to court or the labor inspectorate. In addition, if the employer delays payment, then this is a reason for another appeal to the court, where interest is most often charged on the payment amount. Your legally competent behavior in court and provision of all materials is a guarantee of success.

They won’t give you your work book? For many, this is a reason for deep despair, but after reading this article, you can find out your rights in this situation, because the law determines: if the work book is not issued by the employer on time, then the employer must bear some responsibility.

In what cases is the employer not liable?

Failure to return a work book is not classified as a violation of the law in the following cases:

• the manager was absent from the enterprise on the day of dismissal;
• the employee with whom the contract is being terminated did not show up to the organization;
• the citizen refuses to receive the document.

The employer also has the right not to issue documentation if the date of dismissal and termination of the contract do not coincide. For example, if the termination of the employment relationship occurs on the basis of repeated absenteeism of the employee. In this case, the employee remains in the organization until the dismissal order is issued.

Responsibilities of the employer when dismissing an employee

In accordance with Art. 84.1. According to the Labor Code of the Russian Federation (LC RF), the employer is obliged to make a full settlement with the employee and issue him a work book (as well as certified copies of work-related documents). 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 an inventory, did not fill out a work pass, did not hand over material assets 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.

What methods to use

So, the employer deliberately does not give you the document you need. Attempts to act in accordance with the labor code will not be successful, and you don’t want to stay in the company. In this case, you can use two methods: contact the labor inspectorate or start legal proceedings. Let's look at each of the methods in more detail.

Contacting the labor inspectorate

An appeal to the labor inspectorate follows the following violations by the employer:

1. Lack of work under an employment contract.
2. Payment is not made in full or with a delayed schedule.
3. Lack of social insurance for the employee by law.
4. The employee’s workplace does not comply with labor legislation.
5. Other violations of labor legislation.

In this case, the employer refuses to issue the required document. Since we want to contact the labor inspectorate, first find out the address of the territorial office of the inspectorate, then draw up an appeal indicating a violation of labor rights.

Also, do not forget to attach all the necessary documents that can support your arguments. After which the completed application must be submitted or sent by registered mail.

The appeal itself must be drawn up correctly and consist of the following points:

• name of the territorial department of the labor inspection, contact details of the head of the institution;
• contact details of the citizen and his position;
• arguments that indicate a violation of labor rights;
• personal signature and date on the completed application.

Where can I restore my employment?

But there are also very difficult cases. For example, the employer does not hand over the work book, and the organization in which the employee worked ceases to exist, that is, is liquidated. Difficulties arise if it is impossible to establish the whereabouts of the former manager. Over time, it may be possible to find the unscrupulous employer and return the lost document. But in order to be hired for a new job or calculate work experience, the employee will need to draw up and receive a duplicate of the work book. How to confirm existing experience and who has the right to issue a duplicate document?

First of all, the employee will have to obtain documents confirming his existing experience, continuous and general. Such documents may be:

• Certificates from the Social Insurance Fund and the Pension Fund branch confirming the availability of social contributions and pension contributions during these periods.
• Certificates, copies of personnel administrative documents (orders) from previous places of work, including information from archival organizations.

Based on supporting documents, information about the employee’s past work activity is entered into the duplicate. Who has the right to issue such a duplicate? According to the currently existing Rules, the employee must apply for a duplicate at his last place of work. But what to do when it is the last employer who is to blame for the loss of his employee’s documents, and it is not possible to find him?

If an employee plans to find a new job, then the new employer has the right to draw up and issue a new work book and indicate information about the length of service based on supporting documents. In the new work book, issued to replace the lost one, the total length of previous work experience is entered in total, but without specifying the periods of work, indicating the positions of the employee and previous employers.

How to calculate the amount of compensation?

To correctly calculate compensation, you need to calculate how much a quit employee could earn if he got a job with a work book. But due to the lack of this document, he was unable to do this. If, for example, 1,000 rubles are paid each working day, then a fine is issued for the amount of all days during which a person could potentially receive a salary. Thus, by multiplying the employee’s salary by the number of days during which the document was not received, the amount of compensation that can be demanded is determined.

Common problems when obtaining a job:

Most often, employees cannot take the document in hand for the following reasons.

They don’t hand over the labor, demanding to pay the “shortage”

While working for a company, an employee may incur a monetary debt to the company.

Upon dismissal, the employee may refuse to repay this debt. Then the employer refuses to hand over the labor until the employee covers the outstanding debt.

This action is illegal. If an employee has a debt upon dismissal, the company is still obliged to pay it off on time and then sue him in court to recover the funds. Labor cannot be delayed for this reason.

They refuse to issue a book without a bypass sheet or work off.

Some companies practice issuing a bypass sheet upon dismissal.
With its help, the transfer of all open cases accepted by the inventory center and the identification of existing debts are controlled. As a rule, this sheet is handed over to the personnel officer on the final working day, and he puts a mark on it at the time of issuing the work permit. Since the requirement to issue a bypass certificate is not enshrined in law, an employee can avoid completing it or simply ignore it.

As a result, the personnel officer may threaten that he will not issue the work permit because the slip has not been completed. This is an offense.

Also, with the help of a delay, the employer can try to force the employee to work for a certain period of time before dismissal.

Attention! If, after submitting the application, the employee does not want to work and does not show up for work, then he must be fired for absenteeism, and then the book must be handed over to him. It is unlawful to withhold a document in any situation.

The employer did not formalize it, but also does not return the work

In practice, a situation may arise in which an employee handed over to the company all the documents necessary for employment, including an employment document, but the administration did not actually formalize it - no employment agreement was concluded.

In this case, it is very important that there is evidence that the documents were actually transferred. If they exist, then it is necessary to immediately submit an application to the regulatory authorities, the prosecutor's office, and with their help return the documents.

Attention! If there is no such evidence, then it will be quite difficult to prove the fact of transfer. Then it is necessary to negotiate with the administration and threaten to appeal to the competent authorities on the issue of unofficial labor.

No way to find an employer

A situation may arise when the employer stops working and disappears with all the documents.
Most often this happens if one is employed by an individual entrepreneur. In this situation, it is best to immediately start collecting certificates to restore your employment status, since it is unlikely that you will be able to obtain the old one. To confirm the length of service, the employee can contact the Pension Fund of the Russian Federation.

The work permit was lost, what should I do?

It may also happen that the employer loses his or her employment. This is a serious violation; the company’s administration will be held accountable, but the employee will still have to restore the document on his own.

Who is responsible?

The employer bears full responsibility for the untimely issuance of the work book. That is why all responsibility rests on him. But if the work book is held not by the employer, but by the personnel department, then the employee of this department will be held responsible for failure to issue the document.

Fine for late issuance of work permit

Such a fine can be imposed not only at the legislative level, but also within the organization. Large organizations issue clear instructions to their employees, according to which an employee who does not issue a work book to a resigned person on time bears financial responsibility for the action taken. The penalty for this is established in accordance with the internal rules of the company.

Correctly drafting a statement of claim

The work book contains information about a person’s work path

The application must be drawn up on A4 sheet. It is necessary to visit the court and take a sample of filling out this application. But if there are no examples in court, you can find a suitable one on the Internet. First, indicate the name of the court where the statement of claim is sent, and also indicate the contact information of the defendant and plaintiff.

The general text of the application must contain information about specific violations of your rights. These violations must be supported by references to articles in the Labor Code. You need to try to state the essence of the statement without emotions and negativity.

It is necessary to present all the facts concisely, in accordance with the rules for drawing up legal statements. If you do not know how to write in a formal style, seek the help of a lawyer.

The application must contain an estimate of the damage you have suffered due to the failure to issue the document. Do not exaggerate your requirements and do not forget to indicate the documents that you will later attach to your application. At the end there should be a seal and your signature as the plaintiff.

If you follow all the recommendations, the court will accept and consider the application. If you do not follow the recommendations, the court will reject your application, send it to you for revision or require you to submit it again.

Reinstatement of labor through the court

The employee can apply to the judicial authorities in order to restore his employment. This is a rather labor-intensive process, but the most effective. Only the court can restore labor rights in full.

To do this, the dismissed employee must draw up a corresponding statement, indicating the reason for reinstatement, as well as all periods of employment.

After receiving this document, the judicial authorities send all specified employers requests to confirm the employee’s work experience in each of the specified business entities.

By the time the request is sent, the company may already be closed. Then the information on the length of service is restored based on the testimony of witnesses.

Attention! The cost of this method is the need to pay the monetary costs of restoring employment. A controversial situation may also arise when a witness refuses to participate in trials.